Heitz v. Knox County Home Telephone Company
| Decision Date | 22 November 1910 |
| Docket Number | 7,126 |
| Citation | 92 N.E. 1040,46 Ind.App. 485 |
| Parties | HEITZ ET AL. v. KNOX COUNTY HOME TELEPHONE COMPANY |
| Court | Indiana Appellate Court |
From Gibson Circuit Court; O. M. Welborn, Judge.
Action by Anton Heitz and others against the Knox County Home Telephone Company. From a judgment for defendant, plaintiffs appeal.
Affirmed.
Samuel W. Williams and John W. Brady, for appellants.
James W. Emison, Louis A. Meyer and Thomas Duncan, for appellee.
Appellants seek by this action to enforce a forfeiture of a lease of certain real estate in Knox county, Indiana. The cause was venued to the court below, where, upon issues formed, trial was had by the court resulting in a finding and judgment in favor of defendant.
The amended complaint originally consisted of two paragraphs. A demurrer was sustained to the first paragraph, after which by leave of the court, a third paragraph was filed. Appellee answered by general denial and six amended paragraphs of affirmative answer. A demurrer to each of said affirmative answers was overruled, as was also appellants' motion for a new trial.
These rulings are assigned as error.
Said first paragraph alleges that plaintiffs are the owners and entitled to immediate possession of certain described property; that on October 10, 1902, plaintiffs, in writing leased said real estate to defendant for a period of twenty-five years; that said lease, a copy of which is made a part of said complaint, was duly recorded; that by the terms and conditions of said lease defendant agreed to pay plaintiffs $ 25 a month rent for said real estate, payable monthly, and further agreed that if it failed to pay said rent for any month when due it would immediately, and without further notice, vacate said real estate and surrender its full possession to plaintiffs; that after the rent was paid for the remainder of the month of October, 1902, they orally agreed that the rental should fall due on the first day of every calendar month for the month preceding; that defendant paid this rental up to and including the rental for the month of August, 1906; that since September 1, 1906, defendant has failed and refused to pay any rent whatever; that on October 1, 1906, at the office of defendant, during business hours or said premises, plaintiffs requested and demanded the payment from defendant of the sum of $ 25 on account of the rent for said premises for the month of September, 1906; that defendant is still in possession of the leased premises; that plaintiffs have performed all and every condition required of them by the terms of the lease, but that defendant has failed to pay, when due, the rent for the month of September, 1906.
Appellants concede that the second paragraph of the amended complaint differs from the first only "in that it contains a different averment as to the character of the demand made for the rent." This averment in said first paragraph reads thus: "That on October 1, 1906, at the office of the defendant, during business hours on said premises, plaintiffs requested and demanded the payment of the sum of $ 25 on account of the rent for said premises for the month of September, 1906." Said averment in said second paragraph reads: "That plaintiffs did on October 1, 1906, at the office of the defendant, just at sunset on said premises, demand and request the payment from defendant of the sum of $ 25 on account of and in full of the rent for said premises for the month of September, 1906."
Where a demurrer is sustained to one paragraph of complaint and the same evidence may be introduced and the same relief granted under another paragraph, such ruling, though erroneous, is harmless error. City of Huntington v. Hawley (1889), 120 Ind. 502, 503, 22 N.E. 326; Chicago, etc., R. Co. v. Indiana Nat. Gas, etc., Co. (1903), 161 Ind. 445, 68 N.E. 1008; Moore v. Boyd (1884), 95 Ind. 134; Clarke v. Darr (1907), 168 Ind. 101, 116, 9 L. R. A. (N. S.) 460, 80 N.E. 19; National Cash Register Co. v. Price (1908), 41 Ind.App. 274, 83 N.E. 776; Sanders v. Crawford (1908), 41 Ind.App. 245, 83 N.E. 719, and cases cited.
The material facts averred in the second, third, fourth and fifth paragraphs of defendant's amended answer were provable under the sixth and seventh paragraphs of said answer. Said sixth paragraph admits that defendant entered into the contract in writing declared upon in the complaint, but says that afterwards it was mutually agreed, by and between plaintiffs and defendant, that the rent should be due and payable on the first of each and every calendar month, or as soon thereafter, within a reasonable time, as the president of defendant company should be in Vincennes to sign a check for the amount; that on October 3, 1906, before the commencement of this action, plaintiff Anton Heitz, called upon defendant at its office, for the purpose of collecting the rent then and there due for said premises pursuant to agreement, for the month of September, 1906, to wit, the sum of $ 25, and that he was there informed by the agent of the company in charge of said office that William H. Vollmer president of said company, was out of town, and the voucher for the rent had not yet been signed by him; that said Heitz then and there told said agent that it was all right, and that he would call...
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