Furry v. O'Connor
| Citation | 28 N.E. 103,1 Ind.App. 573 |
| Decision Date | 09 June 1891 |
| Docket Number | 51 |
| Parties | FURRY v. O'CONNOR ET AL |
| Court | Court of Appeals of Indiana |
From the Marion Circuit Court.
Judgment affirmed.
E Marsh, W. Cook and R. Williamson, for appellant.
F Winter, for appellees.
--This action was brought by the appellees against the appellant and one Richard F. Moore on an account for merchandise alleged to have been sold and delivered to them by the appellees. A judgment was recovered against both Moore and Furry, from which the latter alone appeals.
On appellant's motion an order was made changing the venue of the cause to the Hamilton Circuit Court and granting appellant fifteen days in which to perfect the change, which was not done, however, within the time to which the order was limited. Appellant, afterwards, moved the court to extend the time for completing the change, which motion was overruled and an exception taken. We are asked to reverse the cause for this reason.
We do not think that the court committed any error in overruling the motion. The appellant bases his right to the relief demanded by the motion upon the alleged bad faith of the clerk of the Marion Superior Court. He alleges that after he filed his affidavit for a change of venue the court took the same under advisement; that the clerk promised his attorney, who resided at Greenfield, to notify him as soon as the order was made, so that he might perfect the change within such time as might be fixed in the court's order; that the attorney had some correspondence with the clerk; that at one time the clerk wrote to the attorney that the order was not yet made, when, in truth and in fact, it had then been made, a fact which appellant and his attorney did not learn until after the time for perfecting the change had expired.
We do not think these facts show any excuse for the appellant's failure to comply with the order of court. It is no part of the duty of the clerk of the superior court to notify parties of the proceedings and orders of court. This is one of the functions which attorneys are employed to perform, and if the appellant or his attorney made an agreement with the clerk to the effect that the latter was to notify such attorney of the making of the order, such clerk, for the purpose of such notification, became the agent of the appellant and not the official organ of the court, and the appellant is bound by his acts. Their agreement was a matter of private concern between themselves, and one with which the court had nothing to do and could take no notice of.
The motion was properly overruled.
The complaint is in two paragraphs. The appellant demurred separately to each.
The first paragraph is an ordinary declaration upon an account for goods sold and delivered by the plaintiffs to the defendants, at their instance and request, and of the value of $ 79.37, as specified in a bill of particulars filed with this paragraph and made a part thereof.
The specific objection in reference to this paragraph is to the bill of particulars, which is superscribed as follows:
Appellant insists that the statements contained in these head-lines of the bill of particulars control the averments in the complaint, and make the complaint disclose, upon its face, the fact that the goods were sold to Moore alone.
We do not so regard it. This paragraph of the complaint contains the averment that they were sold to both defendants, and this averment is the controlling one. We are aware that in actions upon written contracts, where the contract, or a copy thereof, is filed with and made a part of the pleading as an exhibit, the contents of the contract control rather than any averments of the complaint which may be in conflict with the same. The reason for this is obvious. The contract itself is the highest and best evidence of its contents, and can not be varied nor impeached by parol. This rule has no application to a bill of particulars. It can not be introduced in evidence at all. Neither does the statute which requires such a bill of particulars to be filed with the complaint provide that it shall have a heading or superscription. Sections 362, 363, R. S. 1881.
Such a statement must, therefore, be rejected as surplusage.
The decision of the court in overruling the demurrer to the first paragraph of the complaint was correct.
The second paragraph is ex delicto, and seeks to charge Furry with liability on account of fraud. The substance of this paragraph is that Furry, the appellant, was the owner of a grocery store in the town of Greenfield, Hancock county, Indiana; that he was involved in a suit with his wife for divorce and alimony; that he came to Indianapolis and found Moore, "whom plaintiffs say said Furry knew, and was informed that he (Moore) had no means or money of any kind;" that the two then entered into an agreement, whereby Furry sold to Moore his said grocery store for $ 800; that in reality, however, it was not a sale at all; that Furry took from Moore a chattel mortgage on the entire stock sold to him; that Furry did not have the mortgage recorded, "but falsely and fraudulently, and with the intent to assist the said Moore, and by a special agreement with the said Moore to obtain a greater credit, as the supposed owner of said store, renewed the said mortgage from time to time until the 11th day of April, 1887, when the said mortgage was renewed the last time;" that, "in furtherance of the said agreement and conspiracy," Furry bought goods of different parties on credit, the plaintiffs among others named, and that before the bills came due Moore returned the stock of goods to Furry, together with those purchased of plaintiffs and other parties, the said Furry thereby obtaining the goods of the plaintiffs and others without paying anything for them, by which the plaintiffs were damaged $ 200, etc.
This paragraph is probably bad for several reasons, which we need not mention here. We think, however, that the facts found by the court, specially, fully sustain the averments contained in the first paragraph. While the facts make out a case of tort, the rule is well settled that a plaintiff, in such a case, may waive the tort, and sue ex contractu. Cooper v. Helsabeck, 5 Blackf. 14. If the facts found by the court were sufficiently proved, we think the appellant was liable. See Gilmore v. Merritt, 62 Ind. 525; Wolfe v. Pugh, 101 Ind. 293.
There was no available error in overruling the demurrer to the second paragraph.
There was a demurrer for misjoinder of causes of action in improperly uniting a paragraph ex contractu with one ex delicto. The demurrer was overruled, and we are asked to reverse the cause on this account.
If the second paragraph of the complaint was insufficient the complaint, to all intents and purposes, contained but one paragraph, and there was, therefore, no misjoinder. But, aside from this, the statute expressly provides that no cause shall be reversed for improperly overruling or sustaining a demurrer for this cause. Section 341, R. S. 1881; Rennick v. Chandler, 59 Ind. 354; Coan v. Grimes, 63 Ind. 21.
There was a trial by the court, and a finding and judgment in favor of the appellees against both the appellant and Moore.
A motion for a new trial, by the appellant, was overruled, and this ruling is assigned as error.
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