Tibbet v. Zurbuch
| Decision Date | 15 February 1899 |
| Docket Number | 2,039 |
| Citation | 52 N.E. 815,22 Ind.App. 354 |
| Parties | TIBBET v. ZURBUCH |
| Court | Indiana Appellate Court |
Rehearing denied May 12, 1899.
From the Allen Superior Court.
Reversed.
Breen & Morris and Colerick & France, for appellant.
Zollars & Worden and Chester Holder, for appellee.
WILEY J. Black, J., did not take part in the decision of this case.
Appellee was plaintiff below, and bottomed his action upon the following contract: The sole purpose of this action was to collect the last described note of $ 250, which note is as follows:
The complaint upon which the case was put at issue and tried was in three paragraphs, and as the appellant has made a vigorous attack upon each paragraph, as not being sufficient, we deem it essential to state with some detail the material and important averments. The first paragraph avers the sale and delivery by appellee to appellant of a certain stock of goods for and in consideration of $ 2,187; that at the time of said sale, appellant, by his written agreement, and as a part of the consideration for said stock, assumed the payment of certain notes described in said agreement, which appellee had given to one Solomon Rothschild, and also assumed thereby the payment of one note for $ 250, given by appellee to one Barney Tibbet, with seven per cent. interest and attorney's fees; that appellee turned over and delivered to appellant said stock of goods, and that appellant has violated his said agreement in that he has failed and refused and still refuses to pay said note of $ 250, together with the interest and attorney's fees, that after the maturity of said note, appellee was compelled to pay, and has paid said note, to his damage, etc. The second paragraph avers that appellant is indebted to appellee in the sum of $ 400 for goods, merchandise, etc., sold by appellee to appellant December 14, 1889; that said goods, etc., consisted of a general stock of merchandise; that the same was sold in bulk, without an inventory or itemized statement of the different articles constituting said stock having been made; that appellee sold the same to appellant for the lump sum of $ 2,187; that soon after said sale, appellant sold them to one Barney Tibbet, who sold said goods at retail to different purchasers, by reason of which appellee was unable to furnish a bill of particulars of said goods. It is then charged that appellant paid to appellee the amount he promised to pay for said stock of goods, except $ 400, for which sum he demands judgment. The third paragraph avers the sale of a stock of goods by appellee to appellant in bulk for $ 1,912. It is then charged, as in the first paragraph, that as a part of the consideration, appellant assumed by written agreement to pay certain notes, executed by appellee, including a note for $ 250, which appellee had given to one Barney Tibbet; that appellant has not kept his said agreement, in that he has not paid said $ 250 note; and that he has allowed said Barney Tibbet, the payee of said note, to retain it unpaid. It is further charged that on October 26, 1891, appellee brought an action in the superior court of Allen county, to recover from said Barney Tibbet money which he at the time owed appellee; that said Barney Tibbet, then having in his possession said note, pleaded the same as a set-off, including interest and attorney's fees, in the sum of $ 315; that said cause was tried in May, 1892, and the amount of said note, interest and attorney's fees, being $ 315, was by the court and jury trying said cause deducted from the amount found due appellee from said Tibbet, and thereby reduced the amount of his recovery in that sum, whereby appellee was compelled to, and did, pay said note, wherefore he was damaged, etc.
The agreement of appellant, heretofore set out, is made an exhibit to the first and third paragraphs of complaint. A demurrer to each paragraph of the complaint was overruled, and an exception reserved. Appellee answered in five paragraphs. The first was a general denial. The second paragraph purports to answer only the second paragraph of complaint, and avers simply that the contract of purchase by him of appellee of the stock of goods, and also all negotiations relating thereto, were in writing, and said written agreements are made exhibits. The same instrument that is made an exhibit to the first and third paragraphs of complaint is one of the exhibits to this paragraph of answer, and the other is the bill of sale executed by appellee to appellant of the stock of goods. The third paragraph of answer also goes to the second paragraph of complaint, and it is therein averred that appellant paid appellee for all the goods etc. purchased of him, by the execution of the written obligation made an exhibit to the complaint, which it is charged was accepted by appellee in full settlement, etc. The fourth paragraph of answer is addressed to the first and third paragraphs of complaint, and it is therein averred that before this action was commenced, appellee did agree to pay the $ 250 note, mentioned in the agreement; that long prior to the institution of this action, he held, treated, and regarded said note as paid on account of a much greater indebtedness existing in favor of appellant and against said Barney Tibbet than the amount of said note, but that there was no actual delivery or surrender of said note to appellant until April 4, 1895, when the same was surrendered by said Barney and delivered to appellant as paid, and that said note was never paid by appellee at any time. The fifth paragraph of answer is addressed to the third paragraph of complaint, in which appellant admits all the facts charged in said third paragraph of complaint, except such as he specifically denies; that he did assume the payment of said $ 250 note, but that prior to the institution of this suit, the same was paid by a mutual outstanding indebtedness between appellee and said Barney Tibbet, on account of which a large sum was due appellant over and above the amount of said note; that on April 4, 1895, said note was by said Barney surrendered and delivered to appellant; that the cause of action as set out between appellee and said Barney was so instituted in said court and so tried in May, 1892, and that the said Barney did plead said note as a set-off in said action, and offered the same in evidence, appellee having pleaded payment thereof; that said note was not taken into consideration by the jury in fixing and determining their verdict, and that the judgment in said cause in no manner involved said note, etc.
A demurrer was addressed to the second, third, fourth, and fifth paragraphs of answer, and sustained as to the fourth and overruled as to the others. A reply in general denial closed the issues, and upon trial by jury a general verdict for $ 1 was returned for appellee, and with the general verdict the jury returned answers to special interrogatories. Appellee moved the court for judgment in his favor for $ 346 on the answers to interrogatories, notwithstanding the general verdict, which motion was sustained. Appellant's motion for a new trial was overruled, and he has assigned errors in ten specifications. The first, second, and third challenge the overruling of the demurrer to each paragraph of the complaint; the fourth, the sustaining of the demurrer to the fourth paragraph of answer; the fifth, the sustaining of appellee's motion for judgment; the sixth, in rendering judgment for appellee, and the seventh in overruling appellant's motion for a new trial. Some of the errors assigned are waived by appellant's failure to discuss them, and we will consider only those to which our attention has been called, both in oral argument and in the briefs.
We will take up the questions in the order in which appellant has discussed them, and this brings us first to the consideration of the third paragraph of the complaint. Appellan...
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