Stewart v. Knight & Jillson Company
| Decision Date | 02 February 1906 |
| Docket Number | 20,667 |
| Court | Indiana Supreme Court |
| Parties | Stewart v. Knight & Jillson Company |
Rehearing Denied May 18, 1906.
From Superior Court of Marion County (62,957); John L. McMaster Judge.
Action by the Knight & Jillson Company against Moses J. Stewart. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337o Burns 1901, Acts 1901, p. 565, § 15.
Reversed.
Robert W. McBride, Caleb S. Denny and George L. Denny, for appellant.
John G Williams and D. P. Williams, for appellee.
Appellee sued appellant to recover $ 1,259.68 for goods and merchandise sold and delivered by it to Corvin Larkin. The complaint discloses that appellee is a corporation doing business in the city of Indianapolis, Indiana, engaged in the wholesale of plumbers' 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":
The complaint alleges that this letter was by appellant delivered to 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 alleged 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 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; 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: (1) Overruling the demurrer to the complaint; (2) sustaining appellee's demurrer to the third, fourth, fifth, seventh and eight paragraphs of the answer; (3) overruling appellant's motion for new trial; (4) 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 & Co." After this caption there appears an itemized account or statement of goods and wares, giving dates, etc., extending from May 1, 1901, to August 31, 1901. Appellant insists that inasmuch as the complaint in this case shows that plaintiff is Knight & Jillson Co., a corporation suing appellant upon the written instrument in question executed by him, guaranteeing payment for the goods thereafter sold by "Knight & Jillson" to Corvin Larkin, that the pleading is insufficient and bad on demurrer, because the caption of the bill of particulars states that the goods were sold to Larkin & Co. instead of being sold to Corvin Larkin, the person named in said instrument. This contention is untenable. 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 persons therein stated. Vannoy v. Klein (1890), 122 Ind. 416, 23 N.E. 526; Furry v. O'Connor (1891), 1 Ind.App. 573, 28 N.E. 103; Wellington v. Howard (1892), 5 Ind.App. 539, 31 N.E. 852; Chapman v. Elgin, etc., R. Co. (1895), 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 thereof, 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. (1878), 64 Ind. 573; Indiana, etc., Assn. v. Plank (1899), 152 Ind. 197, 52 N.E. 991, and authorities 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 guarantee the payments 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 the bearer, Corvin Larkin, have at any time what he might want, coupled with a direct, unconditional, absolute, original promise or undertaking by appellant to pay for the goods or supplies that appellee might sell to Larkin. Consequently, when appellee accepted the letter or document in question and acted thereon by selling the goods and merchandise in controversy to Larkin, the promise became binding upon appellant, and he was liable thereon without any notice of the fact that appellee had accepted appellant's guaranty or promise to pay for the goods sold and furnished to Larkin. Neither was he entitled to notice that the latter had defaulted in the payment for the goods so sold and furnished to him. When the writing in question was delivered to and accepted by appellee company, appellant then stood in the attitude of a surety for Larkin, and was required to take notice of the default of his said principal. The interpretation which we accord to the letter or written document in dispute, and the rule which we affirm and adhere to, are well sustained and settled by the decisions of this court and by the decisions of the higher courts in other jurisdictions. Wright v. Griffith (1890), 121 Ind. 478, 6 L. R. A. 639, 23 N.E. 281; Nading v. McGregor (1890), 121 Ind. 465, 6 L. R. A. 686, 23 N.E. 283; Jackson v. Yandes (1845), 7 Blackf. 526; Bechtold v. Lyon (1892), 130 Ind. 194, 29 N.E. 912; Metzger v. Hubbard (1899), 153 Ind. 189, 54 N.E. 761; Kirby v. Studebaker (1860), 15 Ind. 45; Ward v. Wilson (1885), 100 Ind. 52, 50 Am. Rep. 763; Lane v. Mayer (1896), 15 Ind.App. 382, 44 N.E. 73; Bryant v. Stout (1896), 16 Ind.App. 380, 44 N.E. 68; Wheeler v. Rohrer (1899), 21 Ind.App. 477, 52 N.E. 780; Newcomb Bros., etc., Co. v. Emerson (1897), 17 Ind.App. 482, 46 N.E. 1018; Hotchkiss v. Barnes (1867), 34 Conn. 27, 91 Am. Dec. 713; Smith v. Dann (1844), 6 Hill (N. Y.) 543; Douglass v....
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