Lillie v. Trentman

• Citation: 130 Ind. 16,29 N.E. 405
• Parties: LILLIE v. TRENTMAN
• Decision Date: 10 December 1891
• Court: Supreme Court of Indiana

130 Ind. 16

29 N.E. 405

LILLIE

v.TRENTMAN

Supreme Court of Indiana.

Dec. 10, 1891.

Appeal from circuit court, Allen county; A. A. CHAPIN, Special Judge.

Action by Augustus C. Trentman against James Lillie. From a judgment entered in favor of plaintiff, defendant appeals. Affirmed.

R. S. Robertson and R. Lowery, for appellant. Morris & Barrett and W. G. Colerick, for appellee.

MILLER, J.

Appellant's counsel states the points he desires this court to pass upon in these words: “ First. Was the action of the court correct in sustaining the plaintiff's demurrer to the amended second paragraph of the defendant's answer? Second. Did the court err in overruling the defendant's demurrer to the plaintiff's reply to the first and third paragraphs of the defendant's answer? Third. Had the Hon. A. A. CHAPIN, assuming to act as special judge, authority to proceed with and try the cause as such judge over the objection of the defendant, and over his motion to remand the cause to the cognizance of the regular judge of the court?” Upon a former appeal of this case the judgment of the court was reversed, in order that the cause might be tried in accordance with the principles of law therein indicated. Trentman v. Fletcher, 100 Ind. 105. The principles of law established on the former appeal, so far as applicable, remain the law of this case through all of its subsequent stages, and must be adhered to, whether right or wrong, not only in the trial court, but in this court on a second or any subsequent appeal. Mason v. Burk, 120 Ind. 404, 22 N. E. Rep. 119; Harvesting Mach. Co. v. Gray, 114 Ind. 340, 16 N. E. Rep. 787; Railroad Co. v. Hixon, 110 Ind. 225, 11 N. E. Rep. 285; Forgerson v. Smith, 104 Ind. 246, 3 N. E. Rep. 866; Jones v. Castor, 96 Ind. 307;Anderson v. Kramer, 93 Ind. 170;Board v. Railroad Co., 89 Ind. 101;Gerber v. Friday, 87 Ind. 366;Board v. Jameson, 86 Ind. 154;Braden v. Graves, 85 Ind. 92; Railroad Co. v. Reed, 83 Ind. 9;Dodge v. Gaylord, 53 Ind. 365. Where the sufficiency of a pleading has been passed upon by this court, that ruling will be adhered to on a second appeal, unless the same has been amended so as to materially change its character. City of Logansport v. Humphrey, 106 Ind. 146, 6 N. E. Rep. 337; Railroad Co. v. Reed, 83 Ind. 9. This court, on the former appeal, having held the second pararaph of the separate answer of Lillie bad on demurrer, we are to determine whether the appellant has by his amendment so changed the character of the pleading as to free it from the infirmities it then contained. Bliss v. Douch, 110 Ind. 296, 11 N. E. Rep. 293. The objections to the pleading as a defense, as stated in the opinion of the court, are two-fold: (1) That the argeement that Trentman should give Fletcher, who was the principal in the note sued on, “further credit for such goods as he, Fletcher, should need to carry on said business,” is too vague, indefinite, and uncertain to be the basis of a contract between the surety and Trentman. (2) “The note, which called for the payment of a definite sum of money, at a time fixed by Fletcher and Lillie, was by the terms of this oral agreement to be paid by Fletcher from time to time, until said note was paid and satisfied.” This was a variance of its terms. By the amendments made to the answer after its return from this court its character was changed from a plea of payment to a plea of failure of consideration; also, referring to the payments to be made by Fletcher, and credits to be made on the note, the words “from time to time,” contained in the original answer, are omitted from the answer as amended. We are of the opinion that by this amendment the objection that the agreement between the appellant and Trentman was a variance from the terms of the note in suit is obviated. If there was no variance between the terms of the contract declared upon in the answer and that evidenced by the note, it was immaterial whether the former contract was in writing or rested in parol. So far as we have been able to discover, no effort has been made to so amend this paragraph of answer as to remove the objection pointed out in the opinion of the court on the former appeal, to the effect that the agreement was “too vague, indefinite, and uncertain to be the basis of any contract,” and therefore insufficient to support the promise relied upon. This court having held that the agreement was without consideration, and no amendment having been made that obviates that infirmity, the court did not err in sustaining the demurrer to the second paragraph of the amended answer.

The next question presented is the action of the court in overruling the demurrer to the reply to the first and third paragraphs of answer. The first paragraph of answer is set out in the opinion in Trentman v. Fletcher, 100 Ind., on page 106, and it is said in that opinion: “Treating all that is said about the agreement upon which Lillie signed the note as surplusage, the first paragraph can be held good as a plea of payment.” The third paragraph of answer avers that the defendant executed the note as the surety of his co-defendant, Fletcher, and says that before the commencement of the suit the note was fully paid and satisfied. The reply is as follows: “The plaintiff, for replication to the first and third paragraphs of the separate answer of the defendant, Lillie, says that he admits that the defendant paid on said note the sum of twelve hundred and twenty dollars and eighty cents. That said sum was paid to the plaintiff by said Fletcher pursuant to an entry made by the plaintiff at the time of the execution of said note in the pass-book of said Fletcher, in these words: ‘Aug. 27,...