Stanley v. Montgomery

• Decision Date: 25 April 1885
• Citation: 26 N.E. 213,102 Ind. 102
• Parties: Stanley v. Montgomery.
• Court: Indiana Supreme Court

102 Ind. 102

26 N.E. 213

Stanley

v.Montgomery.¹

Supreme Court of Indiana.

April 25, 1885.

Commissioners' decision. Appeal from circuit court, Madison county.

C. L. Henry, H. C. Ryan, and E. P. Schlater, for appellant. M. S. Robinson and J. W. Lovett, for appellee.

BICKNELL, C. C.

The appellee brought this suit against the appellant. The complaint alleged that Emma Sutton had two suits pending against John Stanley, a son of the defendant, one for bastardy, and the other for seduction, and that in the settlement of said suits they were dismissed, and the said John Stanley married said Emma, and before marriage, in consideration of said settlement, the defendant and said John Stanley executed and delivered to the plaintiff, as trustee for the use and benefit of said Emma, their joint and several bond, whereby they agreed to pay to the plaintiff the sum of $1,500; the conditions of said bond being that the said John Stanley should marry the said Emma Sutton, and provide for her, and the child begotten by him of her body; that he should furnish them with a suitable house, and should treat her as a husband should treat his wife, and that if said John should do and perform all his promises and agreements as written in said bond, then the same should be void, but if the said John should fail to do and perform the same, or if he should abandon the said Emma after their said marriage, or should fail to provide her with a house, and suitable provisions, or should, by his misconduct, give to her a legal cause for divorce, then, and in either event, said bond should be in full force and effect, and the penalty therein written should be taken and deemed as liquidated damages for any breach of said bond, to be recovered in any proper action without relief from valuation or appraisement laws; that all the conditions of said agreement were performed by said Emma on her part, but said John failed to perform said conditions on his part, in this, to-wit, that after such suits were dismissed, and after said marriage, he cursed, abused, and shamefully treated her; that he falsely accused her of adultery; that immediatelyafter said marriage he took his said wife to the house of her sister, and there abandoned her; that he never provided for her a house, nor furnished her with any clothing or support for her or their said child, so that she has been compelled to live with her father; that during her confinement at her father's house, and afterwards, he wholly failed to provide her with medical aid, or to supply her wants, but remained absent from her; that during said marriage, he left his said wife, and sought the society of prostitutes, and was guilty of adultery with divers persons, whose names are unknown to the plaintiff; that afterwards said John Stanley died, and no administrator of his estate has been appointed; that, by reason of the premises, a right of action has accrued to the plaintiff against the said defendant to recover on said bond, for the use of the said Emma Stanley, the sum of $1,500, for which, etc. A demurrer to this complaint, for want of facts sufficient, was overruled. The defendant answered by a general denial, and by a special defense, which the plaintiff, in his reply, denied. The cause was tried by a jury, who returned a verdict for the plaintiff, and assessed the damages at $1,500, with a credit of $50. The defendant's motion for a new trial was overruled, and judgment was rendered on the verdict. The defendant appealed.

The errors assigned are that the court erred in overruling the demurrer to the complaint, and that the court erred in overruling the motion for a new trial. Two objections are made to the complaint, to-wit: (1) That the complaint does not allege any damages which have accrued by reason of the breach of the bond; (2) that the complaint contains no averment that the damages are due and unpaid.

In answer to the first objection, it is sufficient to say that, where a complaint claims damages liquidated by agreement, it is not necessary to prove any amount of damages actually sustained, and the bond here sued on was clearly an agreement for liquidated damages.

In answer to the second objection to the complaint, it may be said that, although as a general rule matter of defense need not be anticipated in a complaint, yet an exception to this is that in suits on contracts for the payment of money it must be alleged that the demand is due and unpaid, or something equivalent thereto must be stated. In Downey v. Whittenberger, 60 Ind. 188, an averment that there is now due on said note $737.88 was held sufficient. In Deutsch v. Korsmeier, 59 Ind. 373, an averment in the complaint that the defendant is indebted to the plaintiff was held sufficient; and in Higert v. Trustees, etc., 53 Ind. 326, the averment that the defendant, although often requested, has hitherto wholly refused, and still refuses, to pay the same, or any part thereof, was held equivalent to an averment that the demand remained unpaid. In the present case, the complaint, after averring that, by the condition of the bond, $1,500 was to become due as liquidated damages, and that the condition of the bond had been broken, continues thus: “Whereby an action hath accrued to the plaintiff against the defendant, to recover the said sum of $1,500, for which he demands judgment,” etc. We think that such an allegation in such a case is equivalent to an averment that $1,500 is due, or that the defendant is indebted in that amount, and brings the case within the rulings in Downey v. Whittenberger, supra, and Deutsch v. Korsmeier, supra, and Johnson v. Kilgore, 39 Ind. 147. The objections made to the complaint cannot be sustained.

The only reasons for a new trial discussed in the brief of the appellant are the sixth, seventh, eighth, ninth, tenth, and eleventh. The sixth reason for a new trial is that the court erred in refusing to give to the jury instructions requested by the defendant numbered 1, 2, 3, 4, 5, 6, and 7. Said instruction No. 1 declares that the plaintiff cannot recover without proving some amount of damages actually sustained by her. This...