Harmon v. Moore

• Decision Date: 02 November 1887
• Citation: 112 Ind. 221,13 N.E. 718
• Parties: Harmon and others v. Moore.
• Court: Indiana Supreme Court

112 Ind. 221

13 N.E. 718

Harmon and others

v.Moore.

Supreme Court of Indiana.

November 2, 1887.

Appeal from circuit court, Warren county; E. C. Snyder, Judge.J. McCabe and E. F. McCabe, for appellants. C. V. McAdams and Thos. C. Moore, for appellee.

Mitchell, J.

The first paragraph of the complaint in this case is in the nature of a bill to review the proceedings and judgment of the Warren circuit court, had and rendered in an action wherein the appellees, as executors of the last will and testament of Jacob Harmon, deceased, recovered a judgment against the appellants for $7,000 and upwards. This paragraph seeks a review, on the ground that there is error of law apparent upon the face of the record, in that the complaint did not state facts sufficient to constitute a cause of action, and upon the further ground that the court did not have jurisdiction over the persons of the defendants. The second paragraph seeks to set aside the judgment and declare it void for the want of jurisdiction over the persons of the defendants, on account of which the plaintiffs say the proceedings and judgment ought to be reversed and set aside. A complete transcript of the pleadings, proceedings, and judgment thus brought in question is exhibited with, and made a part of, each paragraph of the complaint.

The original action is founded upon a lease, by the terms of which Jacob Harmon in his life-time demised, for a certain rent therein reserved, various tracts of land aggregating over 1,000 acres, situate in Warren county, to Anthony Harmon, for a term of 12 years from the fifteenth day of March, 1867. The lease contained a recital to the effect that the lessor had theretofore furnished to the lessee certain personal property, which was specifically described, enumerated, and valued, and which aggregated in value $10,000, and consisted of horses, mules, oxen, cattle, sheep, farming implements, farm products, and provisions. It was stipulated in the lease that the lessee should be entitled to the increase, growth, grain, and proceeds arising from the personal property so furnished, and that at the end of his term he should surrender the demised premises and deliver to the lessor or his assigns, on the premises demised, horses and other personal property in kind and value equal to that furnished him by the lessor. The lease was extended in 1876, and again in 1882; the last extension being for a term ending March 15, 1885. At the time of the last extension John J. and Waldo L. Harmon became jointly interested with the original lessee by becoming parties to the lease. The complaint alleged that the lessor died in February, 1885, and that the plaintiffs had been appointed the executors of his last will. The execution of the lease and the several extensions was set forth, together with copies of the several instruments, and the consideration and terms upon which the demise was made. The plaintiffs assigned as a breach of the lease that, subsequent to the fifteenth day of March, 1885, that being the date of the alleged expiration of the term as last extended, they (plaintiffs) demanded of the defendants, on the lands described in the lease, the return of personal property of like kind and worth as that set forth in the lease, less the amount of certain legacies bequeathed to the defendants by the last will of the lessor, but that the defendants refused to deliver any property in compliance with the demand. The complaint further alleges that, by reason of the premises, the defendantsare indebted to the plaintiffs, as the executors of the last will and testament of Jacob Harmon, deceased, in the sum of $7,000 and upwards.

The first objection taken to the complaint is that it nowhere alleges that the defendants are indebted to the plaintiffs, or that the debt remains due and unpaid. This objection is not well taken. The right of action did not arise from the failure of the defendants to pay money upon a contract. The lease did not require the lessees to pay money; but in respect to the breach alleged, it required them, at the expiration of the term, to deliver personal property of like kind and value as that delivered to the lessees by the lessor prior to the execution of the lease. As the breach complained of did not arise from a failure to pay money, but because the defendants refused to deliver property as their contract required, there would have been no propriety in averring that a debt remained due and unpaid. It sufficiently appeared from the complaint that the term had expired; that the plaintiffs were the executors of the last will of the deceased lessor, and had demanded the property on the land leased; that the defendants had refused compliance with the demand; and that they had thereby become indebted in a sum named. It is quite true “that a pleading founded on a contract is never complete, either in form or substance, unless it alleges a breach.” Lawson v. Sherra, 21 Ind. 363. But it is also true that where a contract requires the delivery of personal property, a complaint on such contract which alleges a demand for the property, and that the defendants refused to deliver it, and that in consequence of such refusal the plaintiff has sustained damage, sufficiently states a cause of action for a breach of the contract. Catterlin v. Armstrong, 101 Ind. 258, and cases cited.

It is objected that the complaint does not show that the demand was made after the expiration of the lease and before suit brought, or that it was made by the plaintiffs as executors, or that it was made upon the farm leased. The complaint alleges that the plaintiffs, after the fifteenth day of April, 1885, “had demanded of said defendants, on the lands described in said lease, the return of personal property of like value and worth of that set forth in said lease sufficient to satisfy said lease.” It is a necessary deduction from this averment that the demand must have been made after the expiration of the term, and before the filing of the complaint, and that, in making the demand, the plaintiffs were acting in the character of executors, and that it was otherwise made in compliance with the requirements of the lease. It was not necessary that the complaint should have alleged that the lessor had performed all the conditions to be performed on his part, for the reason that, by the terms of the lease, there were no precedent conditions to be performed by him upon which the right of action depended. There was nothing...