Nichols & Shepard Co. v. Berning

• Decision Date: 11 January 1906
• Docket Number: No. 5,529.,5,529.
• Citation: 76 N.E. 776,37 Ind.App. 109
• Court: Indiana Appellate Court
• Parties: NICHOLS & SHEPARD CO. v. BERNING et al.

37 Ind.App. 109

76 N.E. 776

NICHOLS & SHEPARD CO.

v.BERNING et al.

No. 5,529.

Appellate Court of Indiana, Division No. 1.

Jan. 11, 1906.

Appeal from Circuit Court, Allen County; E. O. Rourke, Judge.

Action by the Nichols & Shepard Company against Henry Berning and others. From a judgment in favor of plaintiff for less than the relief demanded, it appeals. Affirmed.Wm. P. Breen and Jno. Morris, Jr., for appellant. W. G. Colerick, K. C. Larwill, and Guy Colerick, for appellees.

ROBINSON, J.

Suit by appellant for damages for an alleged breach of contract for the purchase by appellee of certain personal property. Appellee Springer was defaulted and judgment rendered against him. Appellee Berning answered in two paragraphs and filed a cross-complaint. A trial resulted in a judgment in Berning's favor on his cross-complaint. The sufficiency of the second paragraph of answer and the cross-complaint, and overruling the motions to modify the judgment and for a new trial, are presented for review.

The contract, for breach of which the action is brought, consists of a written order executed by appellees directing appellant to ship to appellees certain machinery which was to be paid for in a manner specified, and the subsequent acceptance of the order by appellant. The second paragraph of Berning's answer is in substance the same as his cross-complaint upon which the judgment in his favor is based. In the cross-complaint it is averred in substance that “prior to the making of the written agreement set forth in the complaint in said action, and to which reference is hereby made as a part hereof,” Berning, at the solicitation of Springer, agreed to become his surety on one of the three notes mentioned in the agreement, the same being the first to nature, and refused to become in any manner involved in the purchase of the machinery or to create any liability in such purchase except to the extent above stated, and so advised Springer who consented thereto, and which fact was communicated to appellant's agents who prepared the agreement and who were about to sell the machinery to Springer; that the agreement was prepared by one of appellant's agents, who prior thereto and at the time was advised and notified by another agent who had sold the machinery to Springer and had made with him the oral agreement relative to such sale, that Berning had merely agreed to become surety on the first note, and, when such statement was so made, the agent preparing the agreement suspended the preparation of the same momentarily for the purpose of inducing Berning to become surety on the last of the three notes instead of the first, but he refused so to do, and again asserted that he would only become liable on account of the sale of the machinery to Springer to the extent of the amount of the first note, and to which the agent so preparing the agreement said “all right,” or words to that effect, and then completed the agreement, and after it was completed Springer signed it, and thereupon Berning signed it, supposing and believing at the time that by and under its provisions his liability had been so limited; that he was not interested in the purchase of the machinery, and for that reason was not interested in the agreement, and gave no attention to the reading of the same, if it was read prior to the signing of his name; that, if he had known that by the agreement it was intended to extend his liability beyond the sum so limited, he would not have signed the same; that Berning is a German, and was and is unable to write or read the English language, and is barely able to write his name in English; that by and through the fraud, inadvertance, or mistake of the scrivener who prepared the agreement he failed and neglected to insert therein a provision limiting Berning's liability to the note which he was to have executed; that the agent who made the oral agreement with Springer for the sale of the machinery was Berning's cousin and in whom Berning reposed trust and confidence, which fact the agent then well knew, and believed that he would not permit cross-complainant to be wronged in the execution of the agreement, especially as such agent, who was present when the agreement was prepared and executed, knew of Berning's inability to read or write the English language, and that Berning depended and relied on him to so protect him; that he has always been and is ready and willing to execute the note, but none has been presented to him, and he is informed that Springer will not receive the machinery; that “by reason of the facts above set forth, he says that said agreement, so prepared by said agent and signed by this cross-complainant, being the agreement set forth in the complaint in this action, as written, is not his agreement, and that he did not execute the same as written, and that the same should be modified so as to conform with his oral agreement as above set forth, by inserting therein a provision limiting his liability to that of surety on the first of said three notes maturing.”

Appellee's counsel insist that the sufficiency of the cross-complaint is not presented, because of appellant's failure, in the brief, to recite the material and essential averments of the cross-complaint. The brief sets out very fully the second paragraph of Berning's answer. It also contains a copy of the opening statement of the cross-complaint, and then says that the averments of the cross-complaint following this opening statement are identical with the allegations of the second paragraph of answer, and then gives the concluding averments of the cross-complaint. This is a sufficient compliance with the rule. To say that the averments of a pleading are identical with those contained in another pleading is the statement of a fact, not a conclusion. If the averments of one pleading are identical with those of another, the averments of the two pleadings are exactly the same. It is provided by statute that, when any pleading is founded on a written instrument, the original or a copy must be filed with the pleading, and the rule is well settled that the failure to file such exhibit renders the pleading bad against a demurrer. But it is also well settled that, if a defense or cross-action arises out of the instrument sued upon, a copy of which is already before the court, it is unnecessary to file with the answer or cross-complaint a copy of the instrument, but is sufficient to refer to the exhibit already on file. Frankel v. Michigan Mut. Life Ins. Co., 158 Ind. 304, 62 N. E. 703;Wadkins v. Hill, 106 Ind. 543, 7 N. E. 253;Grubbs v. Morris, 103 Ind. 166, 2 N. E. 579;Gardner v. Fisher, 87 Ind. 369;Sidener v. Davis, 69 Ind. 336;Pattison v. Vaughan, 40 Ind. 253;Germania, etc., Ins. Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868. The cross-complaint makes a sufficient reference to the agreement set forth in the complaint to make it a part of the cross-complaint. The agreement consisted of two parts-the proposition of the purchaser to buy, and its subsequent acceptance by the seller. It took both to make the contract, and while the cross-complaint uses language in certain parts to indicate that the pleader had in mind the written proposition only, yet, when the pleading is taken as a whole, it may be said that it fairly shows that the agreement or contract set out in the complaint is made a part of the cross-complaint by reference. Appellee Berning was not required to demand a reformation of the agreement before filing the cross-complaint. If appellee were the moving party, and the only relief sought was the reformation of the written agreement, a previous demand would be essential; but even in that case no prior demand would be necessary, if, in addition to the reformation, a recovery was demanded. Earl v. Van Natta, 29 Ind. App. 532, 64 N. E. 901;Lucas v. Labertue, 88 Ind. 277;Axtel v. Chase, 83 Ind. 546;Sparta School Tp. v. Mendell, 138 Ind. 188, 37 N. E. 604;Walls v. State ex rel., 140 Ind. 16, 38 N. E. 177;Citizens', etc., Bank v. Judy...