Stewart v. Knight & Jillson Co., 20,667.

• Docket Nº: No. 20,667.
• Citation: 166 Ind. 498, 76 N.E. 743
• Case Date: February 02, 1906
• Court: Supreme Court of Indiana

166 Ind. 498
76 N.E. 743

STEWART
v.
KNIGHT & JILLSON CO.

No. 20,667.

Supreme Court of Indiana.

Feb. 2, 1906.

Appeal from Superior Court, Marion County; Jno. L. McMaster, Judge.

Action by the Knight & Jillson Company against Moses J. Stewart. From a judgment for plaintiff, defendant appealed, and the cause was transferred from the Appellate Court (74 N. E. 1131) under Burns' Ann. St. 1901, § 1337o. Reversed.

[76 N.E. 744]

R. W. McBride, C. S. Denny, and G. L. Denny, for appellant. D. P. Williams, for appellee.

JORDAN, J.

Appellee sued appellant to recover $1,259.68 for goods and merchandise sold and delivered by it to one Corvin Larkin. The complaint discloses that appellee is a corporation doing business in the city of Indianapolis, Ind., engaged in the wholesale of plumber's supplies. The action is based upon the following letter or instrument alleged to have been executed by appellant and directed to appellee under the name and style of “Knight & Jillson”: “Indianapolis, Indiana, June 23, 1900. Knight & Jillson: Please let the bearer, Corvin Larkin, have whatever he wants at any time, and I will see that the same is paid for. [Signed] M. J. Stewart.' The complaint alleges that this letter was by appellant delivered to the said Corvin Larkin and by him delivered to appellee company, and that the latter, relying solely upon the promise of appellant, as therein made, furnished and delivered to said Corvin Larkin on and after June 23, 1900, until August 31, 1901, various amounts of goods, wares, and merchandise. It is charged that, beginning with May 1, 1901, and at various times after said date until August 31, 1901, appellee, relying solely on the promise of appellant as made in said letter, furnished and delivered to the said Corvin Larkin a large quantity of goods and merchandise, consisting of plumbers' supplies, etc., amounting in the aggregate to $1,352.84, of which, after deducting therefrom the credits, there remains due and unpaid $1,259.68, for which judgment is demanded against appellant. It further alleges that a demand was made upon the latter for the amount so due before the commencement of this action. A bill of particulars showing the goods sold to Larkin between May 1 and August 31, 1901, with credits for payments made on said account, is also filed as an exhibit with the complaint. A demurrer to the complaint for insufficiency of facts and defect of parties defendant was overruled, and appellant answered in eight paragraphs. The case was tried on the complaint and the answer of appellant, which finally consisted of a general denial, plea of payment, and plea of non est factum, and appellee's reply thereto. Upon the issues joined there was a trial by jury and a verdict returned in favor of appellee for $1,312.76. Appellant moved for a new trial, assigning in his motion the statutory grounds and other reasons therefor. He also moved in arrest of judgment. Both of these motions were denied, and judgment was rendered on the verdict. From this judgment he appeals, and the alleged errors upon which he relies for reversal are: First, overruling the demurrer to the complaint; second, sustaining appellee's demurrer to the third, fourth, fifth, seventh, and eighth paragraphs of the answer; third, overruling appellant's motion for new trial; fourth, overruling the motion in arrest of judgment.

Appellant first insists that the court erred in overruling the demurrer to the complaint. At this point, however, we are met with the contention of opposing counsel that no question is presented on this ruling, for the reason that it appears by a bill of exceptions that appellee during the trial was, over the objections of appellant, permitted by the court to amend the complaint by inserting therein, immediately after the words “whereby he promised to pay to plaintiff herein,” the following words: “under the name and style of ‘Knight & Jillson”’-and by inserting the same words immediately after the allegation “that said written instrument was addressed to the plaintiff.” Appellee claims that by the amendment in question the original complaint to which a demurrer was directed has been superseded, and is therefore not properly in the record. But it does not appear that after the complaint was amended it was refiled or that any offer to refile it was made, or that appellee demanded that it should again be filed. Apparently the court and both of the parties treated and considered the complaint as if it had been amended at the time the demurrer was overruled thereto. We are confirmed in this view of the matter by the fact that what purports to be the original complaint and the one upon which the cause was tried, as transcribed and certified up as a part of the record, contains at the proper places the words shown by the bill of exceptions to have been added thereto by the amendment in controversy. Under the circumstances the rule that an amended pleading when refiled supersedes the original is not applicable, and cannot be here invoked by appellee. The caption of the bill of particulars, as exhibited with the complaint, is as follows: “Sold to Larkin & Company.” After this caption there appears an itemized account or statement of goods and wares, giving dates, etc., extending from May 1, 1901, to the 31st day of the following August. Appellant insists that inasmuch as the complaint in this case shows that plaintiff is the Knight & Jillson Company, a corporation suing appellant upon the written instrument in question executed by him, guarantying payment for the goods thereafter sold by “Knight & Jillson” to Corvin Larkin, the pleading is insufficient and bad on demurrer, because the caption of the bill of particulars states that the goods were sold to “Larkin & Company,” instead of being sold to “Corvin Larkin,” the person named in said instrument. This contention is untenable.

[76 N.E. 745]

The caption of a bill of particulars is not an essential part thereof, and may be rejected as surplusage, and any statement therein cannot be held to control or vary the averments of the complaint with which it is filed as an exhibit. It will be observed that it is specifically alleged in the complaint that the goods and merchandise in suit were sold by the plaintiff to Corvin Larkin, and while the particular items in respect to the goods sold, as stated or specified in the bill of particulars, as a general rule govern the allegations of the complaint in regard to these items, nevertheless neither the caption of the bill nor the body thereof will be allowed to overthrow or control the specific averments of the complaint in respect to the parties or person therein stated. Vannoy v. Klein, 122 Ind. 416, 23 N. E. 526;Furry v. O'Connor, 1 Ind. App. 573, 28 N. E. 103;Wellington v. Howard, 5 Ind. App. 539, 31 N. E. 852;Chapman v. Elgin, etc., Ry Co., 11 Ind. App. 632, 39 N. E. 289. It is true that, in an action founded on a written contract, where the latter, or a copy therof, is filed with and made a part of the complaint, the contents or stipulations of the written contract control any averments of the complaint in conflict therewith. Cotton v. State ex rel., 64 Ind. 573;Indiana, etc., Loan Association v. Plank, 152 Ind. 197, 52 N. E. 991, and authorities there cited.

It is next insisted that the letter or document upon which this action is based is but a collateral undertaking on the part of appellant, and therefore, in order to render him liable thereon, he was entitled to notice of its acceptance by appellee company and also notice of the default of Larkin, and that the failure of the complaint to allege or show these facts renders it fatally defective. The letter in question, however, does not profess to be an offer or a proposition to guaranty the payment of goods that might be sold by appellee to Corvin Larkin, but it is a positive and unqualified order by appellant to appellee to let...