Nave v. Powell

• Decision Date: 06 January 1916
• Docket Number: No. 8786.,8786.
• Citation: 110 N.E. 1016,62 Ind.App. 274
• Parties: NAVE v. POWELL.
• Court: Indiana Appellate Court

62 Ind.App. 274

110 N.E. 1016

NAVE

v.POWELL.

No. 8786.

Appellate Court of Indiana, Division No. 1.

Jan. 6, 1916.

Appeal from Circuit Court, Miami County; Nott N. Antrim, Special Judge.

Action by Alton P. Nave against Oliver M. Powell. Judgment for defendant on his cross-complaint, and plaintiff appeals. Affirmed.

See, also, 52 Ind. App. 496, 96 N. E. 395.

Charles R. Milford, of Attica, for appellant. Cox & Andrews, of Peru, for appellee.

HOTTEL, J.

This is a second appeal by appellant in an action brought by him to recover on two promissory notes given by appellee for the purchase of a stallion. There was a judgment below for appellee on his cross-complaint in the sum of $200.

[1] Twelve separate rulings of the trial court, including the ruling on the motion for a new trial, are assigned as error in this court; but the questions presented thereby for our determination are expressly limited by appellant in his brief, under the heading “Points and Authorities,” as follows (we quote):

“Under the assignments of error numbered 1, 2, 6, 7, 8, 9, and 10, all of which refer to the alleged error of the lower court in the several rulings on the different pleadings, substantially the same question is involved, namely, the right, privilege, and legality of the pleading of fraud in this cause at this time. The appellant contends that under the contract as existing between the parties, under the conditions as heretofore made in the first trial of this cause, and decided by the Appellate Court of Indiana, that it was then too late and improper for appellee to raise the issue of fraud, and on that point and the overruling of the motion for a new trial the following authorities are cited by appellant.”

The appellant follows this statement with numerous general propositions of law and citations of authorities applicable to the question which he suggests as the one presented by the rulings on the several demurrers to the pleadings. No specific reference is made to any assigned error, nor is there any attempt to apply his propositions of law to any assigned error, except as indicated in the above statement. The other assigned errors are therefore waived. Chicago, etc., R. Co. v. Dinius, 180 Ind. 596, 626, 103 N. E. 652;Palmer v. Beall, 110 N. E. 218, and cases cited.

[2] The motion for a new trial contains 53 grounds, and the only reference to the ruling thereon in said points and authorities is a statement that (we quote):

“There were rulings on certain instructions referred to in the new trial as to the time when a sale in this case was effected, and under that head the following authorities are cited.”

Then follows a statement of two separate propositions of law and citations of authorities in support thereof. Such statement, under the frequent holdings of the Supreme Court and this court, presents no question on the ruling on said motion. See cases cited supra. It follows that the only question which we are required to determine in this case is that above indicated in our quotation from appellant's brief, and to such question this opinion will be limited. For the purpose of determining this question we deem it unnecessary to set out the several pleadings to which the said respective demurrers were addressed, but instead will state more fully appellant's contention. It is claimed by appellant that by reason of the questions presented on the former appeal and the decision of this court in respect thereto it was “too late and improper for appellee to raise the issue of fraud on the second trial.” With respect to this question appellant states his contention as follows:

“Appellee did not have the right, *** after having made his election in the former trial to stand on his contractual right, to entirely change the remedy, *** and *** rely upon his remedy in tort; *** that appellee did not claim that he had not made an election by his pleadings and defense in the first trial, but he relied solely on his right to change his theory on the fact that an alleged amended complaint was filed.”

Appellant further insists, in effect, that on the former appeal “appellee relied on the contract of warranty executed and delivered by appellant, and [that] this court held that the remedy provided in that contract was exclusive”; that such holding is the law of the case, and is conclusive against appellee's right to file amended answers and cross-complaint predicated on fraud. In answer to the contention last indicated appellee says, in effect, that the record discloses that, after judgment of this court on the former appeal was certified to the trial court, the latter court entered an order in accord with such judgment, and appellant then, by leave of court, amended his complaint and thereby rendered inapplicable the doctrine for which he contends.

[3] The character of the amendment controls this question. If no substantial changes were made in the respective pleadings by the amendments thereto, the former decision, in so far as such pleadings are affected thereby, must be recognized as the law of the case. Hatfield v. Cummings, 152 Ind. 537, 53 N. E. 761;Terre Haute, etc., R. Co. v. Zehner, 28 Ind. App. 229, 62 N. E. 508;Shirk v. Lingeman, 26 Ind. App. 630, 59 N. E. 941;Indiana Traction Co. v. Pring, 50 Ind. App. 566, 578, 96 N. E. 180; and cases cited; Alerding v. Allison, 170 Ind. 252, 260-261, 83 N. E. 1006, 127 Am. St. Rep. 363. If, however, the amendments change the theory of the pleadings, or any of the material averments thereof, so as to present a law question essentially or materially different from that determined by the former appeal, the doctrine that such decision is the law of the case can, of course, have no application. Indiana Traction Co. v. Pring, supra; Alerding v. Allison, supra. It appears from the record that the only amendment of the complaint was one as to the amount of attorney's fees. This could in no way change or affect the question presented and decided by the former appeal. It follows that, unless the averments and theory of appellee's amended answers and cross-complaint are such as to render inapplicable said doctrine, it must control the case.

As before indicated, these pleadings are predicated on fraud. The character and nature of the pleadings involved in the former appeal and the law question determined in relation thereto will be best understood by an examination of that opinion. See Nave v. Powell, 52 Ind. App. 496, 96 N. E. 395. That opinion will disclose that, on account of certain deficiencies in appellant's brief, the court expressly limited the questions to be considered to rulings on appellee's demurrer to appellant's reply to appellee's first paragraph of answer, and the rulings on appellant's demurrers to appellee's sixth paragraph of answer and third paragraph of cross-complaint, and also indicated that in considering such rulings it would only be necessary to interpret and construe the written warranty involved in such pleadings. After setting out the first paragraph of appellee's answer, the court in that opinion said:

“The theory of this paragraph *** is an implied warranty of the breeding qualities of said stallion by plaintiff at the time of the sale, and a breach thereof.”

The substance of the reply addressed to such paragraph of answer, and the written warranty made part thereof, and the substance of appellee's sixth paragraph of answer and third paragraph of cross-complaint, each of which were also predicated on such written warranty, are then set out, after which the court says:

“It will be seen *** that the question presented by the rulings on the demurrers thereto turns on the construction to be placed on said contract of warranty.”

After discussing the respective contentions of the parties relating to the construction to be placed on such contract of warranty, the court said:

“ We are forced to the conclusion that in the matter of the provision for the remedy for the breach of the warranty the contract is exclusive, and that appellee is restricted to the remedies therein contained, and that the court below therefore erred in overruling appellant's demurrers to the sixth paragraph of answer and the third paragraph of cross-complaint, respectively, and also in sustaining appellee's demurrer to appellant's special reply to the first paragraph of answer. Inasmuch as this case must be reversed for these errors, we have not examined the other paragraphs of the pleadings with a view of determining their sufficiency, and express no opinion thereon, further than to say that the construction placed on the written warranty and contract of insurance is the law of the case applicable to all the pleadings the same as to those expressly considered and ruled on. The judgment is therefore reversed, with instructions to the court below to sustain the demurrer to appellee's sixth paragraph of answer and third paragraph of cross-complaint, and to overrule the demurrer to appellant's special reply to appellee's first paragraph of answer, and for further proceedings not inconsistent with this opinion.”

Appellant contends, in effect, that the opinion expressly holds and limits appellee's remedy in this case to that provided by his written warranty, and hence that appellee could have no defense or cause of action predicated on fraud. This contention results from appellant's attaching to the italicized language, above quoted, an unwarranted meaning and effect. Such language must be considered in connection with what immediately precedes and follows it, and when thus considered it seems to us there can be no doubt or uncertainty as to its meaning, viz., that the warranty relied on by appellee had been reduced to writing and was controlled thereby; that such writing, the construction of which was the real thing being considered, was exclusive as to the remedy provided therein; and hence that any defense or cause of action based on warranty would likewise be so limited.

None of the...