Kinney v. Dodge

• Decision Date: 30 April 1885
• Docket Number: 11,773
• Parties: Kinney v. Dodge
• Court: Indiana Supreme Court

101 Ind. 573

Kinney v. Dodge

No. 11,773

Supreme Court of Indiana

April 30, 1885

From the Elkhart Circuit Court.

The judgment is reversed, with costs, and the cause is remanded for a new trial.

J. M Vanfleet, for appellant.

R. M Johnson and E. G. Herr, for appellee.

OPINION

Howk J.

In this case the appellee, Dodge, the defendant below, has assigned here as cross error, that the appellant's complaint does not state facts sufficient to constitute a cause of action. In the natural order of things, this cross error should be first considered; because, if the appellant had no cause of action against the appellee, it is certain that the judgment below should be affirmed, without regard to any intervening error. This is settled by the decisions of this court. Fell v. Muller, 78 Ind. 507; Clawson v. Chicago, etc., R. W. Co., 95 Ind. 152.

In his complaint the appellant alleged that, on the 21st day of October, 1882, he sold and conveyed, by warranty deed, a certain lot or parcel of land, in the city of Elkhart, to the appellee, Dodge, and in part payment for such lot the appellee executed his two promissory notes, each for the sum of $ 500, payable respectively in one and two years to the appellant, with eight per cent. interest from November 1st, 1881, and secured by mortgage on the lot; that appellee was an attorney at law, skilled and learned in the law, and the appellant was a farmer, and was not skilled in the law; that, on the 21st day of October, 1882, the appellant went to the appellee's office, in the city of Elkhart, to collect such first note; that appellee then informed appellant that there were certain liens and charges on such lot that were unpaid and a breach of the covenants in his deed; that the amount of such liens and charges was $ 59.91; that appellant knew the appellee was skilled in the law, and supposed that he knew the facts in the matter; and that, relying wholly on the appellee's statement that such matters were liens and still unpaid, and that appellee would have to pay them and could then collect the same from appellant, the latter allowed the amount thereof to be deducted from such note, and gave up the note to appellee, taking from him a receipt in the words and figures following, to wit:

"Office of Henry C. Dodge, Attorney at Law, 97 Main St.:

"Elkhart, Indiana, -----, 188-.

"Cost of getting Virgil Young's mortgage released

$ 2.25

"Judgment against J. T. Weaver, Oct. 30th, 1871

30.07

"Six per cent. interest on the same

19.84

"Tax certificate, 1845

2.44

"Interest at six per cent. on same

5.31

"Total

$ 59.91

"Received the above sum in full release to George Kinney of these claims against the property, which he deeded to me by warranty deed on October 21st, 1881; and I hereby discharge said Kinney from any further responsibility against said claims, which are a lien on the real estate mentioned in said deed of said date. October 21st, 1882.

"(Signed) Henry C. Dodge."

And the appellant averred that the appellee misrepresented both the law and the facts to him, and he supposed that the same were true and relied thereon; while in truth, as the appellant had since learned, all of said claims had been fully paid, and would not have been liens if they had not been paid; that such liens were paid long before that time, and the appellee well knew that, if valid, they could not be liens on such lot at that time; wherefore the appellant said that he had been defrauded out of $ 59.91, and he asked judgment for $ 75.

It will be observed that the sufficiency of this complaint was not questioned below by the appellee, by demurrer, by a motion to make its averments more certain and specific, or by a motion in arrest of judgment. But after verdict and judgment thereon, the appellee attacks the complaint for the first time in this court, by assigning here as error that it does not state facts sufficient to constitute a cause of action. This, of course, the appellee has the right to do under section 343, R. S. 1881; but there are often objections to a complaint, which will not be available to the defendant, if he do not take advantage of them at the proper time and in the proper manner. Donellan v. Hardy, 57 Ind. 393. It is true, as a general proposition, that misrepresentations as to matters of law merely will not afford the complaining party any cause of action. But here the complaint shows that the appellant's mistake of law was induced by the misrepresentations of the appellee, who was "an attorney at law, skilled and learned in the law." It can not be that the courts can not relieve the appellant from, nor afford him any redress for the results of his mistake of law thus induced. Bales v. Hunt, 77 Ind. 355, and authorities cited. We are of opinion that the appellant's complaint stated facts sufficient to constitute a cause of action, good even upon demurrer, and good, beyond a peradventure, when questioned, as it is, after verdict and judgment, for the first time in this court.

We come now to the consideration of the only error assigned by the appellant, namely, that the court erred in overruling his motion for a new trial. Under this...