Price v. Grand Rapids & Indiana R.R. Co.
| Decision Date | 13 June 1859 |
| Parties | Price v. The Grand Rapids and Indiana Railroad Company. Askey v. The Grand Rapids and Indiana Railroad Company |
| Court | Indiana Supreme Court |
A Petition for a Rehearing of this Case was Filed on the 19th of July and Overruled on the 8th of November.
From the Lagrange Court of Common Pleas.
The judgment is reversed with costs. Cause remanded.
A Ellison, for appellants.
J. B Howe, for appellees.
The complaint alleges that Price, who was the defendant, on the first of October, 1854, subscribed and promised to pay for forty shares of the capital stock of said company, in such manner and at such times as the directors might require; and that the directors did require the payment of said stock to be made by installments of 10 per cent. a month, commencing on the 1st of March, 1855; of which requisition the defendant has had due notice, but has neglected and absolutely refused to pay the same, although six installments were due at the commencement of this suit, amounting to 600 dollars, for which judgment is demanded, &c.
Defendant's answer contains eleven special defences, and a general denial. Issues were made on the first and tenth. The first avers that the subscription was obtained from the defendant by the fraud of the plaintiffs; and the tenth alleges "that plaintiffs have never fixed any time when the subscription, or any part thereof, should be paid; nor have they designated a place where it should be paid, or given defendant notice when and where to pay it; and that at the time the subscription was made, the office of the company was in this state but before it was possible to pay the subscription, their office was removed out of the state, and has remained out of the state ever since."
To the second defence, the plaintiffs replied by a general traverse; and to the tenth "that they did fix a time for the payment of the subscription in regular installments, according to the statute," &c.
To the other paragraphs demurrers were sustained. The issues were submitted to a jury, who found for the plaintiffs 560 dollars. New trial refused and judgment, &c.
The complaint is alleged to be defective, because it makes no reference to any written contract of subscription; and that that defect, being material, is available upon the demurrers to the answer.
It is enacted that "when any pleading is founded on a written instrument or an account, the original, or a copy thereof must be filed with the pleading." 2 R. S. p. 44, § 78. This rule seems to be imperative; the original instrument, or a copy, must be filed; and it seems to us that an averment in the complaint that such has been filed, is essential to the validity of that pleading. Under the former system of procedure, it was sufficient for the pleader to set forth the written contract sued on, according to its legal effect and operation. 1 Chit. Pl. 305.--8 Cow. 34.--Villard v. Tillman, 2 Hill 274. This is also a requirement of the new code. 2 R. S. p. 37, § 49. But, in addition, the code requires that the contract should, in the first instance, be laid before the Court, and thus be placed in reach of the defendant at the earliest stage of the proceedings. The instrument in suit, or a copy of it, must be filed when the pleading is filed, and unless the fact that that has been done appears on the face of the complaint, it cannot be assumed that the pleading sets forth "a sufficient cause of action." In this instance, the complaint is obviously defective, because it not only omits to say that the contract, or a copy of it, was filed, but fails to allege it in accordance with its legal...
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