Latta v. Miller

• Decision Date: 27 January 1887
• Citation: 10 N.E. 100,109 Ind. 302
• Parties: Latta and another v. Miller, Adm'r, etc.
• Court: Indiana Supreme Court

109 Ind. 302

10 N.E. 100

Latta and another

v.Miller, Adm'r, etc.

Supreme Court of Indiana.

January 27, 1887.

Appeal from circuit court, Elkhart county.

John H. Baker and Frank E. Baker, for appellants. Johnson & Hess and Wilson & Davis, for appellee.

HOWK, J.

In this case the appellee, Miller, administrator of the estate of Jacob Beckner, deceased, sued the appellants, Latta & Sparklin, in a complaint of four paragraphs, upon a promissory note, of which the following is a copy:

“$790. Goshen, Ind., April 27, 1881.

Fourteen months after date, we promise to pay to the order of William C. Miller, guardian of J. Beckner, seven hundred and ninety dollars, at our office, for value received, without any relief whatever from valuation or appraisement laws, with 7 per cent. interest from date until paid, and attorney's fees.

[Signed] Latta & Sparklin.”

The appellants severed in their defense, and each answered separately in four special paragraphs, to each of which paragraphs the appellee's demurrer, for the alleged want of facts, was sustained by the court. The appellants severally declined to amend or plead further, and judgment was rendered against them, in appellee's favor, for the amount found due on their note, and the costs of suit. In this court the appellants have separately assigned errors, which call in question the decisions of the circuit court (1) in overruling their separate demurrers to each paragraph, except the third, of appellee's complaint; and (2) in sustaining appellee's demurrers to each paragraph of their separate answers. The cause was submitted in this court by agreement, on the third day of February, 1885. It does not appear that any brief or argument has ever been filed here by or on behalf of the appellant Sparklin, and therefore this appeal must be dismissed as to him, at his costs, under rule 14 of the rules of this court, for the want of such brief. This leaves for our consideration and decision such questions only as are presented by the errors assigned by the appellant Latta; and these are the only questions discussed by counsel in their briefs of this cause.

On behalf of appellant, it is first insisted that the court below erred in overruling his demurrer to the first paragraph of appellee's complaint. In this first paragraph the appellee alleged that, on the twenty-seventh day of April, 1881, he was the legal guardian of the person and estate of one Jacob Beckner, then an inhabitant of Elkhart county, and a person of unsound mind; that, on the day last named, the appellants were partners in business under the firm name of Latta & Sparklin; that on said day, at the instance and request of the appellants, appellee, as such guardian, loaned them, of the money and property of said Jacob Beckner under guardianship as aforesaid, the sum of $790, and the appellants on the same day received such money as partners, and used the same in their partnership business, and evidenced such loan by their promissory note, setting out the same note, whereof a copy is heretofore given in this opinion; that at the time such money was so loaned to appellants, they well knew that the money was trust funds belonging to the estate of said Jacob Beckner; that, after the execution of such note, to-wit, on the fourteenth day of October, 1881, said Jacob Beckner died at Elkhart county, and afterwards, on October 20, 1881, the appellee was appointed and qualified, and was then acting, as administrator of such decedent's estate; that afterwards, and after the second day of April, 1882, the appellants, Latta & Sparklin, dissolved their copartnership without having paid or arranged for the payment of their aforesaid note; that on April 2, 1882, the appellant Latta, then and there well knowing that appellee was the administrator of such decedent's estate, and that the debt evidenced by such note was of the trust moneys of such estate, and not otherwise, proposed to appellee that he would then pay on such note an amount equal to the one-half of the principal and of the accrued interest thereof, and then and there asked appellee to receive the same; that appellee accepted such proposition and received such money without any consideration whatever therefor, and solely to accommodate appellant Latta, except the payment of the one-half of the amount then due on such note; that appellant Latta, on April 2, 1882, paid appellee the sum of $422.18, of the trust funds belonging to such estate, and the appellee then and there, in his individual capacity, and not as administrator, receipted to appellant Latta for the sum so paid, by signing his name to a writing indorsed on such note, in the words and figures following, to-wit:

“Having received one-half of the value of this note from M. M. Latta, I hereby release all claim on him for the balance.

April 2, 1882.

[Signed] William C. Miller.”

-But with the intent and “distinct understanding by each of these parties” that said Sparklin should in no manner thereby be released or discharged from his liability on said note; and the appellee averred that the residue of such note was then due and owing to him, as administrator; wherefore, etc.

In each of the second and fourth paragraphs of his complaint, appellee sued appellants for the recovery of the same sum of money, belonging, as alleged, to the “trust funds” of the estate of appellee's intestate, mentioned in the promissory note declared upon in the first paragraph of such complaint.

The second paragraph of complaint contained no reference whatever to any promissory note; but in such paragraph appellee said that on the twenty-seventh day of April, 1881, he was the lawful guardian of the person and estate of one Jacob Beckner, who was then and there a person of unsound mind, and an inhabitant of Elkhart county; that on said day appellee, as such guardian, loaned appellants, then partners doing business in such county under the firm name of Latta & Sparklin, $790 of the funds and property of the estate of said Jacob Beckner; that appellants then and there well knew that the money so loaned to them was of the funds and money of said estate; that afterwards, on October 14, 1881, said Jacob Beckner died at such county, and appellee was administrator of such decedent's estate; and that the sum of money so loaned appellants, “trust funds as aforesaid,” with interest from April 27, 1881, was then due and owing appellee from the appellants, and wholly unpaid; wherefore, etc.

In the fourth paragraph of his complaint, appellee again declared upon the promissory note, heretofore copied in this opinion, and stated substantially the same facts in relation to the note and the indorsement thereon as were stated in the first paragraph of complaint, the substance of which we have already given. The fourth paragraph covers nearly three times as many pages of manuscript as the first paragraph of complaint, and this constitutes the principal difference between the two paragraphs. The material facts of appellee's cause of action, as stated in the fourth paragraph of his complaint, are concealed and almost wholly lost in a dense mass of unnecessary verbiage. Such pleading is a proper subject of criticism and, speaking mildly, cannot be commended.

Appellant's learned counsel concede in argument that the second paragraph of appellee's complaint is “probably good;” but they vigorously assail the first and fourth paragraphs of such complaint, upon the ground that neither of these paragraphs stated facts sufficient to constitute a cause of action against the appellant Latta. Of the first paragraph of complaint counsel say: “In addition to the averments as to the execution and non-payment of the note, the paragraph sets up a valid release of all liability thereon. Such pleading ought not to be tolerated by the courts, as it violates the fundamental principles of good pleading. It attempts to embody in the complaint a cause of action, an anticipated defense, and matter in avoidance of such defense.” What is thus said by counsel in relation to the first paragraph might be equally as well said of and concerning the fourth paragraph of complaint. Doubtless, it is true as a general rule that good pleading requires, under our Civil Code, that the complaint or paragraph thereof shall contain no more than “a statement of the facts constituting the cause of action, in plain and concise language, without repetition.” Section 338, Rev. St. 1881. But, like other general rules, this one has its exceptions; and the case in hand falls within the exceptions to the general rules of good pleading. Where, as in this case, the complaint or paragraph thereof counts upon a promissory note, and the anticipated defense to the suit is the written release of the maker from all liability on such note, by the payee and holder thereof, so indorsed on the note as to become in some sense and to some extent a part of the cause of action, it seems to us that the plaintiff cannot well avoid the statement, in such complaint or paragraph, of such anticipated defense and of the facts which show, as claimed by him, that such defense was and is invalid and void. It is true, no doubt, as appellant's counsel insist, that where the complaint or paragraph thereof, after stating the plaintiff's cause of action, sets up an anticipated...