Rich v. Fry
| Decision Date | 04 February 1925 |
| Docket Number | 24,207 |
| Citation | 146 N.E. 393,196 Ind. 303 |
| Parties | Rich et al. v. Fry et ux |
| Court | Indiana Supreme Court |
Rehearing Denied June 11, 1925, Reported at: 196 Ind. 303 at 314.
1. VENDOR AND PURCHASER.---Allegations of complaint held to show waiver of strict performance of some preliminary conditions of contract for sale of farm.---In action to recover purchase money for farm sold on contract containing conditions precedent, allegations that, on date fixed by contract for performance, plaintiffs put purchaser's agent in possession of the lands and that purchaser was still in possession of them, showed a waiver of strict performance of some of the preliminary conditions of the contract, which thereby was executed in part. p. 310.
2. VENDOR AND PURCHASER.---Performance of covenant to deliver abstracts showing and deeds conveying good title held sufficiently alleged.---In an action to recover purchase money for farm, performance of covenant to deliver abstracts showing and deeds conveying a good merchantable title held sufficiently alleged. p. 310.
3. VENDOR AND PURCHASER.---That plaintiff had good title sufficiently alleged to withstand demurrer under 360 Burns 1926.---In an action to recover purchase money for farm, that plaintiff had and furnished good title was sufficiently alleged to withstand demurrer under 360 Burns 1926 by averment that he delivered abstracts showing him to have such a title and tendered deeds executed by himself and wife conveying such a title, but probably subject to a motion to make more specific under that section. p. 310.
4. PRINCIPAL AND AGENT.---That person was defendant's agent in purchase of farm sufficiently averred to withstand demurrer, but probably subject to motion to make more specific.---In an action for the purchase money for a farm that a named person was the agent of the defendant in the negotiations for the sale was sufficiently averred to withstand a demurrer by describing him as such agent in connection with the acts alleged to have been done by him but probably subject to motion to make more specific as provided by 360 Burns 1926, 343a Burns' Supp. 1921. p 310.
5. REFORMATION OF INSTRUMENTS.---Allegations held to show mistake in contract that was subject to reformation.---Allegations in complaint to recover purchase money of farm that the parties agreed for the purchase and sale of land in range two and that purchaser was put in possession thereof, but that, by mistake of the scrivener who prepared the contract, it was made to read "range one" and that both parties under- stood it as describing the land sold, sufficiently shows a mistake that was subject to reformation. p. 310.
6. BILLS AND NOTES.---Promissory note is deemed to have been executed for a valuable consideration.---Under 11383 Burns 1926, 9089x Burns 1914, any promissory note that is within the provisions of the Negotiable Instruments Law is deemed prima facie to have been given for a valuable consideration p. 311.
7. REFORMATION OF INSTRUMENTS.---Wife who was one of the payees of note given for part of purchase price of farm was entitled to join in suit for reformation of the contract of sale.---Where a note given for part of the purchase price of a farm was made to the vendor and his wife, she, being entitled to join in an action to enforce it, was also entitled to join in a complaint for reformation of the purchase contract, thereby to show that, in fact, there was a valuable consideration for its execution. p. 311.
8. PARTIES.---"Defect of parties" means too few parties, not too many.---A "defect of parties" which is a ground for demurrer means too few parties, not too many. p. 311.
9. PARTIES.---Demurrer for "defect of parties" must designate the parties to be joined.---A demurrer for "defect of parties," to be sufficient, must designate the proper parties to be joined. p. 311.
10. PLEADING.---Motion to paragraph complaint or to separate causes of action stated not sufficient unless different causes of action are designated.---A motion to require the plaintiff to separate his complaint into paragraphs or to separate the causes of action stated therein is not sufficient unless it specifies how the complaint ought to be divided or designates the different causes of action to be stated separately. p. 311.
11. APPEAL.---Overruling motion to separate complaint into paragraphs not reversible error, even though sufficient reason existed for asking separation.---Overruling a motion to separate a complaint into paragraphs is not cause for reversing the judgment, even though sufficient reason existed for asking such separation. p. 311.
12. ACTION.---Matter of docketing separately two or more causes of action improperly joined is largely within discretion of trial court.---The matter of docketing separately two or more different causes of action improperly joined is largely controlled by the sound legal discretion of the trial court. p. 311.
13. ACTION.---Court's discretion not abused in refusing to order separation of causes of action on a note and for reformation of contract where note was executed as part consideration for the contract.---In an action on a note given as part of the purchase price of a farm and asking that the contract of sale be reformed because of mistake therein, the court did not abuse its discretion in denying separation of causes of action, the note being executed at the same time and as a part of the contract, and reformation of the contract was necessary to make out a cause of action on the note as against a plea of want of consideration. p. 311.
14. TRIAL.---Not error to overrule motion to try legal and equitable issues separately when they are closely connected and can all be submitted at the same time.---In an action on a note given as a part of the purchase price of a farm where plaintiffs' complaint asked a reformation of the contract of sale because of a mistake in the description of the land, the court did not err in overruling a motion to try the issues of law separately from the equitable issues, as the note and contract and the issues were so closely connected that it was not improper to try all the issues at the same time. p. 312.
15. TRIAL.---Legal and equitable issues that are separable may be tried at same time or at different times as the court may direct.---Even where legal and equitable issues in a cause are separable, they may be tried "at the same time or at different times, as the court may direct" (437 Burns 1926, 409 R. S. 1881). p. 312.
16. PLEADING.---Overruling motion to make certain allegations of a pleading more specific not error when allegations are immaterial.---It is not error to overrule a motion to make certain allegations of a pleading more specific when the allegations are not material. p. 312.
17. PLEADING.---Reply held sufficient as argumentative denial of answer that note sued on was without consideration.---In an action on a note given as part of the purchase price of a farm, plaintiff's reply to a plea of want of consideration alleging that it was agreed that he should accept the note in suit as part of the purchase price of the land, that the defendants executed it in lieu of the first payment thereof by their codefendant, and that plaintiff accepted it as part payment of the consideration for the land, is sufficient as an argumentative denial of the plea. p. 312.
18. PLEADING.---Overruling demurrer to argumentative denial proper.---It is not error to overrule a demurrer for want of facts to an argumentative denial. p. 312.
19. PLEADING.---Sufficiency of reply not impaired because of containing immaterial averments.---In an action on a note, the sufficiency of a paragraph of reply to an answer of want of consideration was not impaired because of containing other averments which had no proper bearing on the question of whether there was a valuable consideration for the note. p. 312.
20. APPEAL.---Defendant against whom no judgment was rendered could not question the verdict against his codefendants.---In an action for the purchase price of a farm and on a note given in part payment thereof, the purchaser could not question the verdict on the note where no judgment on the note was rendered against him. p. 313.
21. BILLS AND NOTES.---Note may be supported by consideration though not received by the makers.---A note may be supported by a consideration though not received by the makers, it being sufficient if a consideration passed to some other person at their instance. p. 313.
22. TRIAL.---Finding that certain amount was due from defendant to plaintiff and that plaintiff held vendor's lien for that amount need not state that he was entitled to foreclose the lien.---In an action for the purchase price of a farm, the court having made a finding that a certain sum was due from defendant to plaintiff and that plaintiff held a vendor's lien on the land for that amount, it was not necessary for the finding to state that he was entitled to foreclose the lien, as that would be a conclusion of law from the facts stated. p. 314.
23. NEW TRIAL.---Motion for new trial properly overruled though no direct testimony in proof of certain facts in issue where they may be inferred from the evidence.---A motion for a new trial may be properly overruled although there was no direct testimony in proof of certain facts in issue where there was evidence from which they might reasonably be inferred. p. 314.
Action by Andrew Fry and wife against Jacob D. Rich and others. From a judgment for plaintiffs, the defendants appeal. Affirmed.
Rehearing Denied June 11, 1925, Reported at: 196 Ind. 303 at 314.
From Starke Circuit Court; Smith N. Stevens, Special Judge.
Action by Andrew Fry and wife against Jacob D. Rich and others. From a judgment for plaint...
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