Mitchell v. Friedley
Decision Date | 16 January 1891 |
Docket Number | 14,671 |
Citation | 26 N.E. 391,126 Ind. 545 |
Parties | Mitchell v. Friedley et al |
Court | Indiana Supreme Court |
From the Lawrence Circuit Court.
The judgment is affirmed, with costs.
M. F Dunn and G. G. Dunn, for appellant.
J. W Buskirk, J. Giles, J. A. Zaring and M. B. Hottel, for appellees.
This action rests upon a promissory note held by the appellees against the appellant.
The appellant filed several paragraphs of answer.
Demurrers were sustained to the third and fourth paragraphs, and proper exceptions reserved.
Replies were filed to all of the other paragraphs except the general denial.
The appellant likewise filed a cross-complaint, upon which issue was joined.
The cause was submitted to the court for trial, and at the proper time a request was made by the appellant for a special finding.
After the conclusion of the trial the court returned its special finding, and the conclusions of law being adverse to the appellant, he reserved exceptions thereto, and filed his written motion for a venire de novo.
The court overruled this motion, and the appellant saved an exception, and thereupon judgment was rendered by the court for the appellees in the main action and in the cross-action as well. At the proper time the appellant filed his written motion for a new trial, which was overruled by the court, and an exception noted in the record.
The errors assigned bring in question the rulings of the court in sustaining the demurrers to the third and fourth paragraphs of answer, in overruling the motion for a venire de novo, in overruling the motion for a new trial, and the propriety of the court's conclusions of law upon the facts found.
The third paragraph of answer alleges that before the commencement of this action the appellant compromised settled and adjusted the note in suit with one Robert Kelley, the duly authorized and acting agent of the appellees in that behalf.
It is sufficient to say that this paragraph of answer is infirm, for the reason that it alleges conclusions, and not facts.
If there was a compromise of the liability that existed upon the note, what were its terms and conditions? What was there to rest a compromise upon?
If there was a settlement, in what way was the indebtedness represented by the note settled? Was it paid, or was there an accord and satisfaction; and if adjusted, what was the nature of the transaction?
If the facts had been stated the court might, or might not, have been of the opinion that there had been a valid and binding compromise, settlement or adjustment.
The fourth paragraph alleges that the money represented by the said note was not the money of Emily Kelley, who is named as payee, but was the money of one Robert Kelley, with whom the transaction took place which terminated in the execution of the note; that the same was executed to said Robert Kelley in the name of Emily Kelley, and that long before the bringing of this suit the appellant settled the same with the said Robert Kelley.
The theory of this paragraph of answer is not that the appellees were not the legal holders of the note when they instituted the suit, for the complaint alleges, and the answer does not seek to avoid the averment, that the said Robert Kelley assigned all of his interest in the note to them on the 9th day of December, 1886.
The answer to be sufficient should contain a statement of the facts constituting the alleged settlement, and should aver, also, that the settlement was prior to the time at which the appellant received notice of the assignment of the note to the appellees.
There may be other infirmities in the answer, but those to which we have called attention are sufficient to justify the ruling of the court in sustaining the demurrer thereto.
The court committed no error in overruling the motion for a venire de novo. The special finding was in proper form, and for no other reason than imperfection in form will the writ of venire de novo be awarded against the court's finding.
We find no error in the conclusions of law announced by the court in its special finding.
The facts found support the conclusions of law as stated.
We come lastly to the ruling of the court upon the motion for a new trial.
We have considered the evidence, and are unable to say that it does not support the finding of the court in view of the rule so often announced by this court.
The damages assessed are not excessive. The appellant was not entitled to set off an indebtedness due him from Robert Kelley alone against his debt due to the appellees and said Kelley jointly.
Until the death of Emily Kelley, the payee of the note, the right of set-off claimed did not exist; and upon her decease the indebtedness which the note of the appellant represented vested jointly in the said Robert Kelley and the appellees hence...
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