Lindley v. Sullivan

• Decision Date: 28 November 1892
• Citation: 32 N.E. 738,133 Ind. 588
• Parties: LINDLEY et al. v. SULLIVAN et al.
• Court: Indiana Supreme Court

133 Ind. 588

32 N.E. 738

LINDLEY et al.

v.SULLIVAN et al.¹

Supreme Court of Indiana.

Nov. 28, 1892.

Appeal from circuit court, Vanderburgh county; R. D. Richardson, Judge.

Action by James F. Lindley, Sr., and others, against Walter L. Sullivan and another. Judgment for defendants. Plaintiffs appeal. Reversed.

L. C. Embree, for appellants. John H. Miller, for appellees.

Miller, C. J.

This was an action by the appellants against the appellees upon a promissory note for $300. The note called for attorneys' 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 attorneys' 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 appellees answered in two paragraphs, the first paragraph being designated as a “set-off and cross complaint,” in which the admission is made that they executed the note in suit as principals, and that “they are liable for the principal sum of said note, with interest and attorneys' fees, 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 was 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 defendants 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 defendants and another, and that said notes be canceled, and for a judgment over against the plaintiffs. The second paragraph makes the same admission of liability on the note for principal, interest, and attorneys' 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 defendants, 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 objection of the appellants was 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 attorneys' fees the value of the services should be stated, evidence may be admitted without such averment, and a recovery had for such fees, 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, 24 N. E. Rep. 347, and 26 N. E. Rep. 222; Reynolds v. Bald win, 93 Ind. 57;Glenn v. Porter, 72 Ind. 525. Unless the value of the fees 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 cannot 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 open and close of the case before the jury. Where it is not necessary for the plaintiffs to introduce any evidence to entitle them to recover, the burden of proof is upon the defendants to establish...