Hargrove v. John
| Decision Date | 10 October 1889 |
| Docket Number | 13,751 |
| Citation | 22 N.E. 132,120 Ind. 285 |
| Parties | Hargrove v. John et al |
| Court | Indiana Supreme Court |
From the Hancock Circuit Court.
Judgment affirmed, with five per cent. damages, and costs.
J. A New and J. W. Jones, for appellant.
J. L Mason and J. H. Mellett, for appellees.
This is an action by the appellees against the appellant on two promissory notes, one for $ 2,500 and the other for $ 1,500. The defendant answered in four paragraphs. The plaintiffs filed a separate demurrer to each paragraph of answer. The court sustained the demurrer to the fourth paragraph, and overruled it as to the others.
The fourth paragraph alleges that the plaintiffs' interests in the notes were separate, each owning a certain amount of the notes, and pleading a set-off against the interest of each. The defendant, Hargrove, without taking leave to amend the fourth paragraph, filed an additional paragraph of answer, numbered five, setting up substantially the same facts and pleading the same items of set-off; which fifth paragraph was demurred to and the demurrer overruled, and the plaintiffs filed a reply to the first, second, third, and fifth paragraphs of the answer and the cause was tried, resulting in a finding and judgment for plaintiffs for $ 224.68.
Error is assigned on the ruling of the court in sustaining the demurrer to the fourth paragraph of the answer. In the case of Hunter v. Pfeiffer, 108 Ind. 197, 9 N.E. 124, the court says: "Where a demurrer has been sustained to a pleading, any other pleading subsequently found in the record, which presents substantially the same cause of action, or defence, will be regarded as having been filed by leave of court as an amendment, and will be treated as having superseded the pleading, or paragraph thereof, which it amends; this, too, without regard to the manner in which the subsequent pleading is entitled." To the same effect is the holding of the court in Trisler v. Trisler, 54 Ind. 172. This is a just and equitable rule; the appellant was in no way injured by the ruling of the court in sustaining the demurrer to the fourth paragraph. He was permitted to plead the same facts, and set up the same defence in the fifth paragraph as was pleaded in the fourth. There is no available error in the ruling of the court sustaining the demurrer to the fourth paragraph of answer.
It is alleged in the first paragraph of the defendant's answer that the defendant was to have a discount of two per cent. on the amount of money paid to the plaintiffs upon the notes before the maturity of the $ 1,500, and that, in pursuance of such agreement, he had paid certain amounts before the maturity of the $ 1,500, and was thereby entitled to the discount of two per cent. on such amounts so paid. Upon the trial of the cause, the evidence showed that the notes were in the hands of one Chandler for collection, and that defendant Hargrove had paid certain amounts upon the notes to said Chandler; Chandler having testified as a witness, and stated that the notes were in his hands for collection, and that he had some instructions in regard to a discount to be allowed on the notes. The record shows that the defendant was recalled as a witness in his own behalf, and was asked to "state what was said in the bank at the time this last payment was made on this note." Objection was made to the...
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