Goldsmith v. First National Bank of Redlands
| Decision Date | 22 November 1911 |
| Docket Number | 7,330 |
| Citation | 96 N.E. 503,50 Ind.App. 11 |
| Parties | GOLDSMITH v. FIRST NATIONAL BANK OF REDLANDS |
| Court | Indiana Appellate Court |
Rehearing denied March 27, 1912.
From Sullivan Circuit Court; Charles E. Henderson, Judge.
Action by the First National Bank of Redlands against Charles H Goldsmith. From a judgment for plaintiff, the defendant appeals.
Affirmed.
W. T Douthitt and L. D. Leveque, for appellant.
Alexander G. Cavins, Alvin M. Higgins, John T. Hays, Will H. Hays and Eugene C. Campbell, for appellee.
This action was brought to recover $ 970.50, paid by appellee to H. K. Pratt & Sons upon a draft drawn by them upon the appellant. Appellee was a corporation engaged in banking at Redlands, California, and appellant was a fruit merchant at Terre Haute, Indiana. H. K. Pratt & Sons were commission merchants at Redlands. On July 29, 1901, H. K. Pratt & Sons made a draft on appellant for the sum of $ 970.50, payable to appellee, and attached it to a bill of lading for a carload of lemons. Said bill of lading showed that H. K. Pratt & Sons were both consignors and consignees of said car, and it contained directions requiring that notice of the arrival of said car at Terre Haute be given to appellant. H. K. Pratt & Sons indorsed said bill of lading as follows: "Deliver this B. L. to C. H. Goldsmith on payment of draft attached, H. K. Pratt & Sons," and delivered said bill of lading and the attached draft to appellee at its place of business. Appellee then paid to H. K. Pratt & Sons the sum of $ 970.50. The authority under and by virtue of which appellee claims to have made such payment, and by virtue of which it seeks to hold appellant, is in writing as follows:
Redlands, California.
Gentlemen: I guarantee to pay, when presented, all drafts, bills of lading attached, drawn on us by H. K. Pratt & Sons for cars of fruit we may authorize them to purchase for spot cash for our account. We authorize them to inspect, buy and slip at our risk, all spot cash orders, and drafts covering such purchases will be paid without recourse or delay. We well understand that any benefits derived from these terms comes to us and our money pays for the same.
Appellant admits that he signed said writing, but denies under oath that he delivered it. When the car arrived at Terre Haute, appellant refused to accept it, and also refused to pay the draft. After some controversy, appellee authorized H. K. Pratt & Sons to ship the car to another place, and to sell the fruit, and, after paying expenses, to pay the proceeds of said sale to appellee.
The action was tried on the issues of fact formed by a complaint in five paragraphs, answer in five paragraphs, and reply in general denial. The first question presented for our decision arises on the action of the trial court in overruling a demurrer for want of facts to each paragraph of the complaint. Appellee claims that the same complaint to which this demurrer is addressed has been held sufficient by this court in a former appeal (First Nat. Bank v. Goldsmith [1907], 40 Ind.App. 592, 82 N.E. 799). If this is true, such ruling, whether right or wrong, became the law of this case, and will be applied throughout the entire proceedings. Linton Coal, etc., Co. v. Persons (1896), 15 Ind.App. 69, 43 N.E. 651; Lillie v. Trentman (1891), 130 Ind. 16, 29 N.E. 405.
Appellant does not contend that the amended complaint, which is questioned by demurrer in this appeal, is different from the one to which the answer was addressed in the former appeal; but his contention is, that its sufficiency was not directly called in question on the former appeal, and that it was not necessary for the court on such former appeal to consider or determine its sufficiency in order to decide the question directly presented. If the question directly presented for decision on the former appeal of this case, did not require the court to pass on the sufficiency of such amended complaint, then, anything which the court may have said in an attempt to decide such question would be obiter dictum, and would not have the effect to determine the question so as to make it the law of the case. Davis v. Krug (1884), 95 Ind. 1; Union School Tp. v. First Nat. Bank, etc. (1885), 102 Ind. 464, 2 N.E. 194.
However, if the question of the sufficiency of the complaint was actually determined, and, if such determination was necessary to a decision of any question directly presented for decision by such appeal, then the sufficiency of the complaint is settled as a part of the law of the case, and cannot again be questioned in any subsequent stage of the proceeding.
This court in its opinion on the former appeal used the following language: It thus appears that the language of the opinion indicates that the amended complaint states facts sufficient to constitute a cause of action. If it was necessary to determine this question in order to decide the question directly presented to the court for decision in that appeal, then the sufficiency of the amended complaint has been settled as the law of the case. The former appeal was prosecuted by the plaintiff to reverse a judgment rendered against it in the trial court. The record on said appeal shows the filing of the amended complaint, and also the filing of the answer thereto, and that a demurrer to such answer had been overruled. The record also shows that the plaintiff refused to reply or plead further, and judgment was rendered against it. The only error assigned was that the trial court erred in overruling the demurrer to the third paragraph of answer, and we are now called on to decide whether, in the decision of the question thus presented, it was necessary for the court to determine the question of the sufficiency of the complaint to withstand a demurrer for want of facts.
The trial court had held that the paragraph of answer in question stated facts sufficient to constitute a defense to the cause of action stated in the complaint. This court on the former appeal reversed the judgment and held that said paragraph of answer did not state facts sufficient to constitute a cause of defense. It is well settled that the demurrer searches the record, and that a bad answer is sufficient for a bad complaint. No answer, however defective, can be insufficient when addressed to an insufficient complaint. The judgment appealed from in the first appeal could not have been reversed by this court, even though it found that the answer was insufficient, unless it also found that such answer was addressed to a paragraph of complaint sufficient to withstand a demurrer. Bowen v. Striker (1885), 100 Ind. 45; State, ex rel., v. Emmons (1882), 88 Ind. 279; Vert v. Voss (1881), 74 Ind. 565; Board, etc., v. Stock (1894), 11 Ind.App. 167, 36 N.E. 928; Alkire v. Alkire (1893), 134 Ind. 350, 32 N.E. 571.
We therefore conclude that it was necessary for this court in the former appeal to determine the question of the sufficiency of the amended complaint to withstand a demurrer for want of facts, and that the decision of the court as to that question became the law of the case, and is controlling. We accordingly hold that the trial court committed no error in overruling the demurrers to the several paragraphs of complaint.
Appellant claims that in two particulars the answers to interrogatories are in irreconcilable conflict with the general verdict. The first claim is that the interrogatories show that the act of appellee, authorizing Pratt & Sons to ship the fruit to another place and sell it, after appellant had refused to accept it and pay the draft, amounted to an election of remedies. It is insisted, on behalf of appellant, that the relations existing between appellant and appellee were such as to give rise to two inconsistent remedies, and that by pursuing the one, appellant lost the other. From a consideration of the answers to the interrogatories, the pleadings, and the general verdict in this case, we cannot say that appellee had two inconsistent remedies. The evidence may have shown, and the jury may have correctly found, that the firm of Pratt & Sons was the agent of appellant, and, as such agent, bought the carload of lemons for the price for which the draft was made, and shipped them to appellant. If the jury so found, then the title to such lemons passed to appellant at the time they were purchased, and the money advanced on the draft by appellee was received by appellant at the time it was received by his agents. The jury may have also found that the money was advanced by appellee solely on the faith of the written guaranty of appellant, and that the bill of lading was attached to the draft only for convenience of appellant and his agents. If, under such circumstances, the bank turned back the bill of lading to appellant's agents when appellant refused to accept the fruit, and if the agents of appellant sold the fruit and paid the proceeds of such sale, after deducting expenses, to appellee, this we think would not constitute an election of remedies, and would not estop appellee from afterward collecting from appellant the balance of the money which it had advanced to his agents.
It is further claimed by appellant that the answers to interrogatories affirmatively show that Pratt & Sons had no authority from appellant to purchase the carload of lemons, except the authority contained in a telegram, and that such telegram did not authorize them to buy for spot cash. The telegram referred to...
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