Ginther v. Rochester Improvement Co.

• Decision Date: 11 October 1910
• Docket Number: No. 6,870.,6,870.
• Citation: 92 N.E. 698,46 Ind.App. 378
• Parties: GINTHER v. ROCHESTER IMPROVEMENT CO.
• Court: Indiana Appellate Court

46 Ind.App. 378

92 N.E. 698

GINTHER

v.ROCHESTER IMPROVEMENT CO.

No. 6,870.

Appellate Court of Indiana, Division No. 1.

Oct. 11, 1910.

Appeal from Circuit Court, Fulton County; Harry Bernetha, Judge.

Action by the Rochester Improvement Company against David D. Ginther. From a judgment for plaintiff, defendant appeals. Affirmed.I. Conner and Rowley & Mattice, for appellant. Holman & Stephenson, for appellee.

MYERS, J.

This was an action by appellee against appellant seeking to recover a money judgment growing out of a transaction between appellant and appellee, wherein appellant and a number of other persons purchased from appellee certain lots in the latter's addition to the town of Rochester, Ind. The price per lot was $200, to be paid for as follows: Ten dollars cash and $1 each week until the balance of $190 was fully paid. Appellant defaulted in making his deferred payments, as provided in a certain written instrument designated a “warranty deed bond,” of date August 17, 1895, issued by appellee to appellant, stipulating that upon payment by appellant of $190, in weekly payments of $1 per week, appellee would execute to the appellant a warranty deed for lot No. 131, free and clear of all liens and incumbrances. The complaint alleges that, at the time of the commencement of this action, the appellant was in default in the sum of $141, which was due and unpaid.

The second, third, and fourth assignments of error relate to the sustaining of a demurrer for want of facts to the first paragraph, and to the amended second and fourth paragraphs of answer. The same objections are urged to each of these paragraphs, appellant contending, first, that the demurrer to each of these answers should have been carried back and sustained to the complaint; second, the complaint not being good, it was error to sustain a demurrer to an answer thereto; third, that the form of the demurrer was insufficient, in that it stated “for the reason neither (paragraph of answer) states facts sufficient to constitute a cause of action.” It is true, as claimed by appellant, that a demurrer to an answer tests the sufficiency of the complaint, as well as the answer to which it is addressed. But, in order to have the ruling of the court reviewed by an appellate tribunal, the complaining party must present the question by a proper assignment of error. McAfee v. Bending, 36 Ind. App. 628, 76 N. E. 412, and cases cited. Appellant's assignment of error does not raise any question on the complaint.

As to the form of the demurrer, it must be conceded that the contention of the appellant is well sustained by authority. School City of Noblesville v. Heinzman, 13 Ind. App. 195, 41 N. E. 464;Wintrode v. Renbarger, 150 Ind. 556, 50 N. E. 570;Oglebay v. Tippecanoe Loan & Trust Co., 41 Ind. App. 481, 82 N. E. 494. Had the court overruled the demurrer, no error would have been committed, for, as has been said by this court in Bell v. Hiner, 16 Ind. App. 184, 44 N. E. 576: “Earlier cases held that it was reversible error to sustain a defective demurrer to an answer without reference to its sufficiency. Gordon v. Swift, 39 Ind. 212;Dugdale v. Culbertson, 7 Ind. 664. Later and better considered decisions, however, declare the law to be that, although the demurrer be insufficient to test the pleading and might be overruled without error, yet, if it is in fact sustained and the pleading is really bad, then no harmful error occurs.” We find no reason for changing the present rule covering the question of the action of the trial court on a defective demurrer. A demurrer was sustained to each of the answers, but the appellant has not, either in his points and authorities or in his argument, attempted to sustain either of the above answers, except in the manner and form to which we have called attention. Any other question touching either of said answers must be regarded as waived. Town of Windfall v. First National Bank, 172 Ind. 679, 87 N. E. 984, 89 N. E. 311;Theobald, Treas., v. Clapp, 43 Ind. App. 191, 87 N. E. 100.

The fifth assignment of error is that the court erred in sustaining the demurrer of appellee to the seventh paragraph of appellant's answer. From the record it appears that appellant filed a seventh paragraph of answer, to which a demurrer was sustained. By leave of court this paragraph was amended, and a demurrer thereto as amended filed. No ruling seems to have been made on the last demurrer; therefore, no question thereon is presented by this assignment.

The next error relied on by appellant is that the court erred in its conclusions of law. Under this assignment, it is insisted that if the evidentiary facts are eliminated, and the ultimate facts only, as found by the court, are considered, the findings are insufficient to sustain the conclusions of law. The findings cover nearly 16 pages of appellant's printed brief, and we will only attempt to give a brief synopsis of them.

The court found: That appellee was incorporated under the laws of this state, and authorized to purchase, hold, improve, sell, and convey real estate for the purpose of promoting the interests of the town of Rochester, Ind., by encouraging existing manufacturing concerns and the location of others. That appellee became the owner of a certain tract of land in Fulton County, Ind., particularly described. That it caused said land to be platted and laid out in lots to the number of 173. That said lots were of unequal value. That on July 17, 1895, appellee and one Wm. H. Ogan entered into a written contract, whereby it was provided that Ogan should sell 150 of said lots at a price of $200 each, the purchaser to pay $10 cash and $190 in weekly payments of $1 per week. In case Ogan was successful in selling said lots, one W. H. Stoddard agreed to erect on one of three certain lots in appellee's addition to the town of Rochester a two-story brick building and a boiler and engine room of certain dimensions, and on or before August 1, 1895, equip said building with the necessary machines and power for the manufacture of women's and children's shoes, and commence the manufacture of shoes therein on or before October 1, 1895, and would maintain and run said factory, employing therein 100 persons on an average for each working day in the year, for a period of at least five years, except for interruptions caused by fires, cyclones, strikes, or acts of God. In consideration of the location of said factory in Rochester, appellee agreed to donate to said Stoddard certain lots in said addition, and to pay Stoddard the sum of $10,000. That on July 18, 1895, subscription papers were prepared and circulated by said Ogan, in which it was stated that the undersigned hereby subscribes for the numbers of lots in said addition set opposite the subscriber's name, at the sum of $200 per lot, to be paid for as per terms stated, and subscription to be void unless 150 lots were subscribed for, lots to be distributed same as college lots. On payment of $10, the purchaser was to receive bond for deed. The sale of the lots was for the purpose of raising funds with which to locate a shoe factory, employing a certain number of persons on an average for every working day for a period of not less than five years. That appellant subscribed for one of said lots and agreed to purchase and pay for same as therein provided. That 150 of said lots were subscribed for. That the distribution of the lots “same as college lots” meant that, when all the lots had been taken by subscription, they were to be distributed by placing the numbers of the lots to be drawn in a receptacle, and a person blindfolded to draw simultaneously the number of the lot and the name of a subscriber, the number of the lot drawn to be taken by the party whose name was drawn concurrently with the number of the lot. That, after the said 150 lots of appellee were subscribed for, a number of subscribers met to distribute the lots to the purchasers, and organized by electing a president and tellers. That substantially the same method was pursued in distributing the lots of appellee as was pursued in the distribution of the college lots. That none of the officers of appellee were present at said distribution, except Joseph A. Myers, who was then the secretary of appellee. That appellee was not present, and did not participate in or superintend, direct, or assist in said distribution in any manner. That Jos. A. Myers, the secretary of appellee, and a subscriber for a lot, was present when the distribution of lots was made, and assisted therein by preparing for use at that time a list of the numbers of lots and names of subscribers. But that said Myers had not been directed, instructed, requested, or authorized by appellee to do so, or to...