Morningstar v. Cunningham
| Decision Date | 08 April 1887 |
| Docket Number | 12,154 |
| Parties | Morningstar v. Cunningham et al |
| Court | Indiana Supreme Court |
From the Morgan Circuit Court.
The judgment is affirmed, with costs.
J Buchanan and L. Ferguson, for appellant.
G. W Grubbs, M. H. Parks, S. Claypool, W. A. Ketcham, W. R Harrison and W. E. McCord, for appellees.
This was a proceeding to review a judgment recovered by Cunningham and others, against Morningstar, in the Morgan Circuit Court.
The bill for review assigned seven specific errors, as being apparent on the face of the proceedings and judgment sought to be reviewed. Copies of all the pleadings, evidence proceedings, and judgment in the original case, are exhibited with the bill.
The court sustained a demurrer to the complaint, and from the judgment which followed upon this ruling, the appeal before us is prosecuted.
The proceeding which is the subject of the bill of review, was based upon a complaint consisting of two paragraphs. Cunningham and others were named therein as plaintiffs, and Morningstar, Henderson, Parks and Harrison were defendants.
The first paragraph of the complaint was founded upon a note and mortgage, alleged to have been executed by Morningstar to Henderson, Parks and Harrison, partners doing business under the firm name of Henderson, Parks & Co. The complaint alleges that this note and mortgage were duly sold and assigned by Henderson, Parks & Co. to the plaintiffs, by their written assignment, a copy of which is exhibited with the complaint. It appears from the instrument of assignment, that the note and mortgage were assigned to the plaintiffs and others as collateral to some obligations due from Henderson, Parks & Co., to the several assignees. The complaint averred that all the claims due to others than the plaintiffs, for whose benefit such assignment had been made, had been fully paid by Henderson, Parks & Co., and that the plaintiffs were the only parties interested in the note and mortgage thereby assigned.
The second paragraph of the complaint was on an account for money alleged to have been loaned to, and advanced for the use of, Morningstar, by Henderson, Parks & Co., which account had also been assigned and delivered by the latter to the plaintiffs.
Separate demurrers were overruled to each paragraph of the complaint. After the defendants had filed their answer, and pending the trial, on motion, the plaintiffs were permitted, over the objection of the defendant, to amend their complaint, by adding as plaintiffs the names of others, who appeared by the instrument of assignment, set out with the first paragraph of the complaint, to be assignees, and to have an interest in the note and mortgage, and other property mentioned in the assignment and thereby assigned.
A demurrer to the amended complaint, which specified as causes of demurrer, that there was a defect of parties, and that the complaint did not state facts sufficient, was overruled. This ruling is challenged as error. The names of all the assignees, in the written assignment, having been added as plaintiffs, there was no defect of parties apparent on the face of the complaint. All appeared to have an interest as assignees on the face of the instrument of assignment, and upon the face of the complaint, as amended, a cause of action was stated in favor of all the plaintiffs. There was, therefore, no error in overruling the demurrer to the complaint.
The defendant then pleaded in abatement, and alleged in his answer in that behalf, that the persons whose names had been added, by the amendment, as plaintiffs, had no interest in the action, because their claims, to secure which the assignment had been made, had been fully paid by Henderson, Parks & Co., before the bringing of the suit. The court sustained a demurrer to this plea, and this ruling is assigned as error apparent on the face of the record.
We know of no rule or authority which sustains an answer which alleges that as to some of the plaintiffs, the action ought to abate, because they have no interest in the cause of action sued on. Matter of that description goes to the merits, and must be determined on the final hearing. It is not properly the subject of a plea in abatement, the effect of which ordinarily is to postpone the action. Pixley v. Van Nostern, 100 Ind. 34.
If any error was committed in overruling the demurrer to the complaint, before it was amended, that error must be deemed cured by the subsequent amendment. It was proper for the protection of the defendant, that all who appeared as assignees, or parties interested on the face of the assignment, should be made parties. It was not so material whether they were plaintiffs or defendants, so that their rights under the contract would be barred by the event of the suit. Durham v. Hall, 67 Ind. 123.
After the plea in abatement was demurred out, the defendant filed answers and a cross complaint. The facts put forward in the special answer are, briefly: That during the season of 1879-80, Henderson, Parks & Co. were engaged in the pork-packing business, in Martinsville, Indiana. While so engaged, they agreed that if the defendant would purchase and deliver fat hogs, at their packing house, they would advance the money to him to make purchases from time to time, slaughter the hogs, when purchased and delivered to them, and prepare the product for market, and honestly account for and deliver such product in good merchantable condition upon the defendant's order. It is further alleged that Henderson, Parks & Co. were also to sell such product upon the defendant's order and account, and reimburse themselves out of the proceeds for the moneys they should advance. In pursuance of this agreement, Henderson, Parks & Co. advanced over $ 25,000 to the defendant. With this and other funds, he alleges he purchased twenty-five hundred and fifty head of fat hogs, and delivered them according to his agreement. After the hogs had been purchased and slaughtered, Henderson, Parks & Co. represented to the defendant that, owing to the decline in the market, the product, if sold then, would not be sufficient to reimburse them for the money advanced, and proposed that if the defendant would execute the note and mortgage in suit, they would carry the defendant's product until there should be a rise in the market. The note and mortgage were executed as requested.
The answer charges that Henderson, Parks & Co. had appropriated a large number of the defendant's hogs to their own use; that they had not kept the product of his hogs separate from their own and others, but had mingled and confused the defendant's with their own, and had converted large quantities of it to their own use, of which facts he was ignorant at the time he executed the note and mortgage sued on. The defendant charges that the value of his property so converted was in excess of the amount of the note, and that hence he was not indebted to Henderson, Parks & Co. at the time the note and mortgage were executed.
The facts stated in the cross complaint present nothing materially different from those above summarized. After replying in denial generally, the plaintiffs, among other things, replied specially, that it was part of the agreement, in pursuance of which the defendant furnished the hogs to Henderson, Parks & Co., that the hogs furnished were to be slaughtered and packed, and the product accounted for in kind and quality, and that there was no agreement to keep the product of the defendant's hogs separate from others similar in kind. They replied further, that the entire product of the hogs furnished had been accounted for, and that it was insufficient by the sum of ten thousand dollars to reimburse Henderson, Parks & Co., for the advances made under the contract.
Similar averments are found in the answer to the cross complaint, with the additional averment, that it was part of the agreement or understanding under which the defendant's hogs were slaughtered, that the product was to be accounted for in kind and quantity, as were the products of other hogs slaughtered at the pork-packing house of Henderson, Parks & Co., with which usage the defendant was, and had been long before, well acquainted.
Upon the issues thus made, there was a trial by a jury, and a verdict and judgment for the plaintiffs in the sum of eight thousand dollars.
During the progress of the trial, the plaintiffs were permitted to prove that according to the usual course of business, it was and always had been the usage of the packing house of Henderson, Parks & Co. to retain certain portions of hogs packed by them, such as the bristles, feet, fat from the entrails, and other offal, as compensation for slaughtering, and cleaning the hogs, and placing them upon the hooks to cool, and afterwards cutting them up.
Evidence was also given, over objection, tending to prove that the usage above mentioned was the common usage...
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