Interstate Public Service Company v. Weiss

• Decision Date: 27 December 1934
• Docket Number: 26,505
• Parties: Interstate Public Service Company v. Weiss, Administrator
• Court: Indiana Supreme Court

193 N.E. 226

208 Ind. 122

Interstate Public Service Company v. Weiss, Administrator

No. 26,505

Supreme Court of Indiana

December 27, 1934

From Elkhart Circuit Court; Lloyd L. Burris, Judge.

Action by Claude E. Weiss, administrator de bonis non with the will annexed of the estate of George H. Grise, deceased against Interstate Public Service Company for an accounting. From a judgment for plaintiff, defendant appealed. Transferred from the Appellate Court.

Affirmed.

William P. Evans, Frazer & Headley, and Vanderveer & Vanderveer, for appellant.

Claude D. Carson, for appellee.

OPINION

Roll, J.

Appellee, by his complaint, charged in substance that George H. Grise, during his lifetime, purchased thirty-five shares of prior lien stock from appellant from which two certificates therefor were issued to him; that George H Grise died testate on the first day of July, 1926, the owner of this stock; that his will was admitted to probate in the Marshall Circuit Court and letters testamentary were issued to his son, John F. Grise, who was named an executor in the will; that the two certificates for said thirty-five shares came into the hands of the executor and were inventoried but not appraised by him; that on the 26th day of January, 1927, the executor, John F. Grise, sold at private sale, without notice and without first obtaining an order from the Marshall Circuit Court authorizing said executor to make sale of said thirty-five shares of stock to parties unknown to appellee, and pursuant to said sale the executor transferred said certificates of stock to parties unknown for approximately $ 3,700.00; that appellant, to the best knowledge and belief of appellee, paid said sum by check to the said John F. Grise as executor, and that said John F. Grise, as such executor, after endorsing said certificates of stock in blank, delivered the same to appellant and surrendered them for cancellation; that appellant cancelled said certificates on the books of the company.

That the executor made no report of the sale of said stock to the Marshall Circuit Court, but converted the proceeds of said sale to his own use with the result that the legatees named in the will received no benefit from such sale, or the proceeds thereof; that the will of George H. Grise made no disposition of said stock and gave no directions for the sale thereof.

The complaint further charged that the executor was ordered to make report to the court and account for the proceeds of said sale to the estate, but that he failed and refused to do so. That appellee herein was thereafter appointed administrator de bonis non with the will annexed and qualified as such. That before bringing this action, demand was made upon appellant to account to him for said stock or the value thereof which it refused to do and that said stock was worth $ 3,700.00.

To this complaint appellant filed an answer in general denial, and among other paragraphs of answer, not material here, appellant filed its amended fourth paragraph of answer to which appellee filed a demurrer, which was sustained by the court. The sustaining of the demurrer to this paragraph of answer raises the only question presented by this appeal.

The amended fourth paragraph of answer alleges in substance that on the 8th day of February, 1926 (1922?), appellant sold to George H. Grise, thirty shares of its 7% prior lien stock, and issued a certificate to him for the same, and on October 1, 1922, he purchased five shares for which a certificate was issued to him. The total consideration for all the stock was about $ 3,590.00. That said stock was sold and the certificates therefor issued to the said George H. Grise upon an express oral agreement, which in substance provided: that the said George H. Grise, his heirs, representatives, administrators, or assigns had the right or option of returning and surrendering said certificates of stock to appellant at any time in the future, in which event appellant would pay to the said George H. Grise an amount of money equal to the then prevailing market price (including dividends) thereof at the time said certificates were so returned, less a brokerage fee of two dollars per share to cover cost and expenses of selling said stock to someone else; that George H. Grise died testate on July 1, 1926, the owner and in possession of said certificates of stock; that the will of said George H. Grise was duly admitted to probate in the Marshall Circuit Court on July 6, 1926, and John F. Grise, who was named in the will as executor, was appointed, gave bond, and qualified as such executor; that said certificates of stock came into the possession of said executor, and on January 26, 1927, pursuant to the terms of the agreement above set out, he presented to appellant his letters testamentary and at the same time presented said certificates of stock to appellant and demanded that the issuance of said stock be rescinded and set aside and that appellant accept the return thereof; that appellant, upon such demand being made, and in compliance with the terms of its agreement and contract, paid to John F. Grise as such executor the then prevailing market price for such stock, which included accrued dividends and less a two-dollar charge per share to cover the expense of selling said stock to some one other than the then owner. That payment was made by executing two checks payable to George H. Grise, one for $ 3,103.80 and the other $ 517.30, which amounts represented the then market price including accrued dividends and less $ 2.00 per share brokerage fee. That said checks were delivered to and accepted by John F. Grise, who endorsed said checks and presented the same to the bank for payment, and received the money therefor. That appellant accepted the certificates of stock and cancelled the same on the books of the company. That at the time of the above transaction appellant had no knowledge of any intention on the part of the said John F. Grise to convert the proceeds or any part thereof to his own use. That appellant was at the time of the above transaction and is now fully solvent, and not in default as to any of its obligations to anyone.

Appellee's demurrer to this answer was for insufficient facts.

To support the court's ruling in sustaining the demurrer, appellee takes two positions, (1) that the answer was no more than on a special or argumentative denial, and that all the facts pleaded therein was admissible under its general denial, and therefore it was harmless error to sustain the demurrer, (2) that the facts pleaded were no defense to the action.

As to whether or not the facts set out in appellant's amended fourth paragraph of answer are such as could be proven under the general denial or should be set up by an affirmative answer we find a great deal of confusion and uncertainty.

Watson in his revision of "Works Practice and Forms," puts it very well. He says in § 569, p. 418, that "One of the greatest abuses of the code system is the tendency to plead too much. This is particularly true of pleadings by way of answer. A very great part of the facts pleaded specially can as well be proved under the general denial, and with much less danger to the pleader. This tendency toward too much special pleading is the result of uncertainty as to the facts that can be proved under the general denial. No fixed rule can be laid down that will remove this uncertainty."

"Defenses in bar to all legal action on contract, or for tort, may be separated into, first, those which deny that the plaintiff ever had the cause of action alleged, because either no foundation therefor existed, or if such foundation ever existed, it had been in some manner removed before the...