Redelsheimer v. Miller
| Decision Date | 24 September 1886 |
| Docket Number | 12,674 |
| Citation | 8 N.E. 447,107 Ind. 485 |
| Parties | Redelsheimer v. Miller et al |
| Court | Indiana Supreme Court |
From the Allen Superior Court.
The judgment is affirmed, with costs.
R. S Robertson, for appellant.
A. H Bittinger and I. Stratton, for appellees.
In this case the appellee Miller sued appellant Redelsheimer, and one Jacob Oppenheimer, who is named as an appellee in this court in a complaint of five paragraphs.
In each of such paragraphs appellee Miller sued to recover a balance due him, as alleged, from appellant on an open account for goods sold and delivered to Oppenheimer by such appellee, the payment of which appellant had assumed, for a valuable consideration. The cause was put at issue by appellant's answer in general denial, with an agreement that all matters of defence might be given in evidence thereunder. The issues joined were tried by a jury, and a general verdict was returned into court for appellee Miller, assessing his damages in the sum of $ 152. With their general verdict the jury also returned into court their special findings on particular questions of fact, submitted to them by the appellant under the direction of the court. Over appellant's motions for judgment in his favor on the special findings of the jury, notwithstanding their general verdict, for a venire de novo and for a new trial, the court rendered judgment against him, in favor of appellee Miller, for the damages assessed in the general verdict and the costs of suit.
In this court the first errors assigned by appellant are the overruling (1) of his demurrer to appellee's complaint for the "misjoinder of parties," and (2) his demurrer to each paragraph of such complaint.
The appellant's demurrer, which assigns as cause therefor the "misjoinder of parties," is addressed to the complaint as an entirety. It is impliedly conceded by appellant's counsel, that this objection is applicable only to the first paragraph of complaint. For, in his brief of this cause, counsel says: "Surely, it needs no authority to show that, in the first paragraph of complaint, the cause of action is one which Jacob Oppenheimer had nothing to do with; while in all the others he was a necessary party." There was no error, therefore, in overruling this demurrer to the complaint. Besides, there is no such cause of demurrer as the "misjoinder of parties," known to our law. Section 339, R. S. 1881, provides that a defendant may demur to the complaint for certain specified causes, whereof the "misjoinder of parties" is not one, and then enacts that "for no other cause shall a demurrer be sustained."
The demurrer to each paragraph of complaint assigned, as the only cause of demurrer, that it did not state facts sufficient to constitute a cause of action. The error assigned by appellant, upon the overruling of this demurrer, is not even alluded to in the brief of his counsel. This error, therefore, is regarded as waived.
The next error complained of here by appellant is the overruling of his motion for judgment in his favor upon the special findings of the jury, notwithstanding their general verdict. The facts found specially by the jury, in their answers to the interrogatories propounded to them, were in substance as follows:
The defendant, Jacob Oppenheimer, stated to appellant Redelsheimer, on the 1st day of September, 1884, before the transfer of the stock of goods by Oppenheimer to Redelsheimer, that his indebtedness to the plaintiff was only $ 40; and Redelsheimer replied, "Well, if that is all you owe him, I will take the stock and pay the debts;" and, on that agreement, Oppenheimer turned the stock over to Redelsheimer. At the time the possession of said stock was delivered, Oppenheimer stated to James T. Pool (Redelsheimer's attorney) that he only owed Miller $ 40, and Redelsheimer had agreed to take the stock and pay the debts. The next morning Redelsheimer stated to Miller's attorney, Mr. Bittinger, that he had only agreed to pay Miller $ 40. Both Redelsheimer and Oppenheimer informed the plaintiff Miller, on the Monday following the transfer, that Redelsheimer had only agreed to pay Miller $ 40, and had not agreed to pay any more. Miller, at that time, had not accepted the terms of the contract. Miller did not say to Redelsheimer, on the Monday following, that he would see him further about it. It is not a fact that plaintiff did, before the commencement of this suit, accept the contract made between Redelsheimer and Oppenheimer, and did not so testify. Redelsheimer did, at the time of his proposition in Oppenheimer's room, promise Oppenheimer that he would pay Miller more than $ 40. The value of the stock Oppenheimer transferred to Redelsheimer was $ 450. Redelsheimer has already paid $ 9.15 costs in the attachment suit, to C. Bremen $ 2.33, to J. W. Smith $ 3 or over, Oppenheimer's board bill $ 6, attorney's fee in attachment suit $ 5, to Rothschild Bros. $ 137.10, to Redelsheimer & Brooks $ 40.87, and his undivided [individual?] claim was $ 110.59, and all these debts and claims were paid on account of his agreement made with Oppenheimer.
It is earnestly insisted, on behalf of the appellant, that the trial court clearly erred in overruling his motion for a judgment in his favor upon the facts found specially by the jury, notwithstanding their general verdict. The code provides: "When the special finding of facts is...
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