Lindley v. Sullivan

• Decision Date: 28 November 1892
• Docket Number: 15,959
• Parties: Lindley et al. v. Sullivan et al
• Court: Indiana Supreme Court

32 N.E. 738

133 Ind. 588

Lindley et al. v. Sullivan et al

No. 15,959

Supreme Court of Indiana

November 28, 1892

Reported at: 133 Ind. 588 at 594.

From the Vanderburgh Circuit Court.

The judgment is reversed, with instructions to grant a new trial.

J. S Buchanan, C. Buchanan, A. Gilchrist and C. A. DeBruler, for appellants.

D. B Kumler, G. V. Menzies and F. P. Leonard, for appellees.

OPINION

Miller, C. J.

This was an action by the appellants, against the appellees upon a promissory note for $ 300. The note called for attorney's fees, but contained no specific allegation as to the amount claimed. There was an allegation in the complaint that the defendants were indebted to the plaintiffs on the note for principal, interest and attorney's fees, and the amount demanded was $ 53 in excess of the amount due upon the note. Upon the calling of the cause for trial, the plaintiffs asked leave to amend their complaint by inserting an allegation "that $ 300 is a reasonable fee for plaintiffs' attorneys," but the court refused leave to make the amendment.

The appellee answered in two paragraphs, the first paragraph being designated as a "set-off and cross-complaint," in which the admission is made that he executed the note in suit, as principal, and that "he is liable for the principal sum of said note, with interest and attorney's fee, as claimed in the complaint." The pleader then proceeds to show that subsequent to the execution of the note in suit, a stock of goods, fixtures, notes and accounts, formerly owned by Sullivan and one Woods, were turned over to the plaintiffs, and a written agreement entered into by which the plaintiffs were to furnish a large sum of money and pay certain indebtedness of Sullivan, and, after deducting an agreed amount due them from Sullivan, either return the residue to Sullivan, or close them out for his benefit; that the plaintiffs had realized an amount sufficient to pay all the debts and expenses, and had remaining in their hands a large amount for which they refused to account.

The prayer was for an accounting of the amount due the defendant under the agreement, and that an amount sufficient to satisfy the note in suit be set off against it and another note, held by the plaintiffs against the defendant and another, and that said notes be cancelled, and for a judgment over against the plaintiffs.

The second paragraph makes the same admission of liability on the note for principal, interest, and attorney's fees, but alleges that the plaintiffs, before the commencement of the action, were, and still are, indebted to him for goods, wares, and merchandise, sold and delivered to plaintiffs by the defendant, at their special instance and request, an itemized statement of which is contained in the contract exhibited with the first paragraph of answer. The prayer is the usual one for a set-off against the amount found due the plaintiffs, and for a judgment against them for the residue.

The appellants answered by a general denial. Some pleadings were filed by the surety on the note sued on, in which he set up his suretyship and asked to be protected.

When the cause was called for trial, the appellees asked that it be submitted to a jury. To this the appellants interposed an objection, claiming that the action was equitable, and must be submitted to the court. The objections of the appellants were overruled, and the cause went to a jury for trial.

The appellants then demanded the right to open and close the case, but this demand was overruled, and the appellees were allowed to open and close.

A trial by jury resulted in a verdict for the defendants, and against the plaintiffs for a sum of money, and the cancellation of the note in suit, and the other note described in the first paragraph of answer.

While good pleading requires that, in an action upon a note providing for attorney's fees, the value of the services should be stated; evidence may be admitted without such averment, and a recovery had for such fee, provided the whole recovery does not exceed the amount for which judgment is demanded in the complaint, the evidence being admissible under the general claim for damages. Roberts v. Comer, 41 Ind. 475; Harvey v. Baldwin, 124 Ind. 59; Reynolds v. Baldwin, 93 Ind. 57; Glenn v. Porter, 72 Ind. 525.

Unless the value of the fee was admitted by the defendants, it was necessary to introduce proof of the reasonable value of such services, and, without an amendment of the complaint, the amount of recovery could not exceed the sum of $ 53.

We can not say that the court abused its discretion in refusing to permit the plaintiffs to amend their complaint upon the eve of the trial, although such leave is usually granted. Glenn v. Porter, supra.

Many things must, necessarily, be left to the sound discretion of the trial court, and an appellate court can only review the action of the court in cases where it is clear that there has been an abuse of discretion.

We are, also, of the opinion that the court did not err in giving the appellees the opening and the closing of the case before the jury. When it is not necessary for the plaintiff to introduce any evidence to entitle him to recover, the burden of proof is upon the defendant to establish his affirmative defense. Indiana State Board, etc., v. Gray, 54 Ind. 91; Goodrich v. Friedersdorff, 27 Ind. 308; Judah v. Trustees, 23 Ind. 272.

As we construe the admission in the several answers, they admitted a recovery for the full amount asked in the complaint, which, as we have said, was the limit of the recovery to which they were entitled. No proof was required, nor was any given in support of the complaint.

The issue tendered by the first paragraph of answer was clearly of exclusive...