Washington Hotel Realty Co. v. Bedford Stone & Constr. Co.

• Decision Date: 30 March 1924
• Docket Number: No. 23516.,23516.
• Citation: 143 N.E. 156,195 Ind. 128
• Parties: WASHINGTON HOTEL REALTY CO. v. BEDFORD STONE & CONSTRUCTION CO.
• Court: Indiana Supreme Court

195 Ind. 128

143 N.E. 156

WASHINGTON HOTEL REALTY CO.

v.BEDFORD STONE & CONSTRUCTION CO.

No. 23516.^*

Supreme Court of Indiana.

March 30, 1924.

Appeal from Superior Court, Marion County; Fred C. Gause, Special Judge.

Action by the Bedford Stone & Construction Company against the Washington Hotel Realty Company and another. Judgment for plaintiff, and named defendant appeals. Reversed, with instructions.Watson & Esarey, of Indianapolis, for appellant.

Fesler, Elam & Young and Miller, Dailey, & Thompson, all of Indianapolis, for appellee.

WILLOUGHBY, J.

This was an action by the Bedford Stone & Construction Company, appellee, against the Washington Hotel Realty Company and J. Edward Krause, for an alleged balance due upon a contract between the appellant and appellee for the construction of the Washington Hotel in Indianapolis, and also for the recovery of alleged extras in connection therewith.

The complaint is in five paragraphs.

The first paragraph seeks to recover from the appellant a balance alleged to have been due from the hotel company under the terms of plaintiff's contract for construction of the hotel. In addition to said amount it charges that the plaintiff, at the special instance and request of the hotel company and Krause, procured the plaintiff to furnish extras in the sum of about $25,000, for which it seeks recovery against both defendants.

The second paragraph of complaint, omitting any alleged balance as against the hotel company on the construction contract, alleges that the defendants, the hotel company and Krause, specially requested the plaintiff to install certain extras in said hotel in the sum of about $25,000.

The third paragraph alleges an unpaid balance of $13,000 on the construction contract as against the hotel company, and further alleges that both defendants were indebted $25,000 for alleged extras furnished at their request.

The fourth paragraph of complaint seeks to recover as against both defendants the sum of $25,000 on account of extras furnished at their special instance and request.

The fifth paragraph is against the hotel company alone, and is upon the quantum meruit, for the alleged cost of the hotel.

To the first, second, third, fourth, and fifth paragraphs of complaint the Hotel Realty Company answered as follows: First, general denial; second, payment; third, failure to perform the contract and damages therefor, setting out the items thereof; fourth, liquidated damages by virtue of the contract; fifth, defective performance of the contract, setting out the defects and asking for judgment over against the plaintiff. The defendant Krause answered all paragraphs by general denial.

Plaintiff then filed a reply in three paragraphs to the Hotel Realty Company's second, third, fourth, and fifth paragraphs or answer. It further filed an answer in three paragraphs to the defendant's third, fourth, and fifth paragraphs of answer, described as counterclaims.

A trial was had and judgment rendered against both of the defendants—against the hotel company for $16,313.14, and against defendant Krause for $2,710.80. Krause satisfied the judgment against him, and a new trial was granted to the hotel company on its motion therefor. The answers heretofore filed by defendant hotel company were withdrawn, and the hotel company filed its answer in six paragraphs, as follows: First, general denial; second, payment; third, payment of certain specified items; fourth, counterclaim; liquidated damages for failure to deliver hotel on contract time; fifth, counterclaim; liquidated damages; sixth, counterclaim for certain specified defects in the construction of said building, and demanding judgment for $25,000. Said hotel company filed its answer in two paragraphs to the fifth paragraph of complaint as follows: Tenth, general denial; eleventh, that said hotel was constructed under and by virtue of a contract, and setting out wherein the plaintiff failed to parform said contract, and demanding judgment on account of said failure to perform.

Plaintiff replied in four paragraphs to the second, third, fourth, fifth, and sixth paragraphs of answer as follows: First, general denial; second, that certain parts of said building were not completed upon contract time, but that the fault was with the defendant hotel company; third, that the delay in completion was caused by extras and changes in plans, and that the contract in reference thereto was mutually waived; fourth, that failure to install certain specifieditems was caused by the directions of defendant hotel company.

The plaintiff further filed an answer in four paragraphs to the fourth, fifth, and sixth paragraphs of answer and counterclaim of the hotel company as follows: First, general denial; second, failure to complete building was caused by changes ordered and extras ordered by the defendant; third, negligence of hotel company caused delays complained of in defendant's answer; fourth, failure to install certain fixtures caused by failure of detailed plans to include same.

The plaintiff further replied in three paragraphs to the eleventh paragraph of answer of the hotel company as follows: First, general denial; second, waiver of provisions for delivery of building in that the hotel company was responsible for delay; third, that plaintiff was not required to install certain fixtures by reason of omission from detailed plans.

Plaintiff further answered in three paragraphs to defendant's answer by way of counterclaim filed March 2, 1916, as follows: First, general denial; second, waiver of provisions requiring delivery of building on certain date on the ground that defendant was responsible for said delay; third, failure to install certain fixtures not required by detailed plans.

The hotel company filed its reply to the plaintiff's second and third paragraphs of answer to its counterclaim by a general denial, and also filed a general denial to the second, third, and fourth paragraphs of answer to its separate counterclaims filed February 17, 1916. The hotel company, by leave of court, filed its fourteenth and fifteenth paragraphs of separate answer, alleging that since the beginning of this action the judgment rendered in favor of the plaintiff as against the defendant Krause for the alleged extras had been satisfied and paid in full by defendant Krause.

The plaintiff filed separate demurrer to each the fourteenth and fifteenth paragraphs of answer of the defendant Washington Hotel Realty Company. The plaintiff's demurrer as to the fourteenth paragraph of answer was sustained, and it was overruled as to the fifteenth paragraph.

The cause was submitted to a jury for trial, which resulted in a verdict for the plaintiff in the sum of $30,000. A motion for a new trial, was filed by appellant. The judge ordered a remittitur of $1,800, and thereupon overruled the motion for a new trial and rendered judgment for $28,200. From such judgment this appeal is taken. The errors alleged and relied on for reversal are sustaining appellee's demurrer to the fourteenth paragraph of answer and the overruling of appellant's motion for a new trial.

[1] The first question to be considered is the demurrer to the fourteenth paragraph of defendant's answer. Appellant contends that in the first trial of the cause the judgment against the defendant Krause having been fully paid and satisfied was full defense to this action. The appellee contends that no question is presented for the consideration of this court by appellant's first assignment of error, which is the sustaining of appellee's demurrer to appellant's fourteenth paragraph of answer, for the reason that the fifteenth paragraph of answer was voluntarily dismissed by appellant after the ruling on said demurrer. A separate demurrer was filed to each the fourteenth and fifteenth paragraphs of answer. The court sustained the demurrer to the fourteenth paragraph and overruled it as to the fifteenth paragraph. If the fifteenth paragraph of answer contained every material averment contained in the fourteenth paragraph to which the demurrer was sustained, the ruling of the court, whether erroneous or not, would not be harmful to appellant because appellant could introduce all the evidence under the fifteenth paragraph which could have been introduced under the fourteenth paragraph. It appears from the record that after the demurrer had been sustained to the fourteenth paragraph the fifteenth paragraph was voluntarily withdrawn or dismissed by appellant. If the ruling of the court on the demurrer was harmless at the time it was made it could not be rendered harmful by a dismissal by the appellant of the fifteenth paragraph after the ruling on the demurrer.

In 6 Ency. Pleading & Practice, p. 356, 357, it is said:

“Where a general denial is filed in connection with a special plea setting up no matter which is not available under the general denial, the sustaining of a demurrer to such a special plea is not reversible error, and the defendant cannot make it reversible error by withdrawing the general issue after the demurrer to his special plea is sustained; or where several pleas are filed setting up substantially the same matters the erroneous ruling of the court in sustaining a demurrer to any one of such pleas will be harmless if the defendant might still show the same facts under any of the remaining pleas.”

In Chicago, Ind. & Eastern Ry. Co. v. Ind. Nat. Gas Co., 32 Ind. App. 519, 70 N. E. 270, the court held that, where demurrers addressed to several paragraphs of pleading were sustained as to part, and overruled as to others, such rulings cannot be reviewed on appeal, where the paragraphs held sufficient were dismissed by the pleader and are not in the record, since the paragraphs in the record to which demurrers were sustained may have been regarded properly by the court as presenting no question that was not as effectually presented by another paragraph of pleading held sufficient on demurrer.

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