Mason v. Mason
| Decision Date | 08 April 1885 |
| Docket Number | 12,076 |
| Citation | 26 N.E. 124,102 Ind. 38 |
| Parties | Mason v. Mason |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled June 12, 1885.
From the Brown Circuit Court.
C. M Duncan, A. Percifield, W. R. Harrison and W. E. McCord, for appellant.
J. V Mitchell and J. F. Cox, for appellee.
The appellant brought this action against the appellee upon an account for money loaned, money had and received, property sold and delivered, and for rents due and unpaid, aggregating $ 6,000.
The appellee filed an answer of four paragraphs. The first was the general denial. The second was a set-off for goods furnished, labor performed, money expended and repairs made at the appellant's request, aggregating $ 7,000. The third and fourth alleged a prior settlement of all matters of difference as per written agreement, a copy of which was filed, and by which the appellee obligated himself, in consideration of such settlement, to pay a school mortgage and to pay the appellant upon demand $ 450. It was further alleged that the school mortgage had been paid; that the appellee had paid the appellant $ 250, and the residue, with interest thereon, was brought into court in discharge of such obligation.
The appellant filed a reply of six paragraphs. The first was the general denial, and the others were special. A demurrer was sustained to the second, fourth and fifth, and an exception reserved. Trial, verdict and judgment for the appellee. Motion for a new trial overruled. This ruling and the ruling upon the demurrer are assigned as error.
The second paragraph of the reply was limited to that portion of the second paragraph of the answer which charged the appellant with certain sums of money paid to, and expended for, her benefit, and alleged that such sums of money belonged to the appellant. These facts were admissible in evidence under the general denial. If the money belonged to the appellant, she did not become indebted to the appellee by reason of its reception either directly or indirectly, and evidence tending to establish such fact went in denial of the appellee's claim. It was therefore admissible under the general denial, and as that answer remained on file no available error was committed in sustaining the demurrer to this paragraph. Wilson v. Root, 43 Ind. 486; Fuller v. Wright, 59 Ind. 333.
The third, fourth and fifth paragraphs of the reply were directed to the third paragraph of the answer, and each of them avers, in substance, that the matters and things mentioned in the complaint were not embraced in such settlement, but that only the sum received by the appellee from a sale of the appellant's land was then settled and adjusted. The third and fifth are substantially alike, each alleging that such settlement was fraudulently procured; and as the third remained on file it follows that no available error was committed in sustaining the demurrer to the fifth, whether it was good or bad.
The fourth alleged that the appellee represented that he had only received $ 500 from a sale of such land, and that such item was alone settled at the time such agreement was made, and that the scrivener, in preparing such agreement of settlement, had, by mistake, inserted the stipulation that such agreement was in full settlement of all matters of difference between them. The stipulation is in these words: "An agreement made and entered into by and between Lucy J. Mason and Hughes Mason, this 7th day of April, 1883, witnesseth, that in settlement of all matters of difference heretofore existing between them there is found to be a balance due the said Lucy J. Mason, from the said Hughes Mason, of four hundred dollars; he, the said Hughes Mason, agrees to pay the said Lucy J. Mason," etc.
This paragraph does not aver that this agreement of settlement was fraudulently procured, nor does it seek a reformation of the contract. It simply avers a mistake. A naked averment of mistake, without seeking a reformation of the contract, can not avoid the defence created by the agreement. King v. Enterprise Ins. Co., 45 Ind. 43.
This is the rule as applicable to defences dependent upon the correction...
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