Wright v. Anderson

• Decision Date: 16 February 1889
• Citation: 117 Ind. 349,20 N.E. 247
• Parties: Wright v. Anderson.
• Court: Indiana Supreme Court

117 Ind. 349

20 N.E. 247

Wright

v.Anderson.

Supreme Court of Indiana.

February 16, 1889.

Appeal from circuit court, Rush county; Samuel A. Bonner, Judge.

Mellett & Bundy, for appellant. Smith & Henley, for appellee.

Berkshire, J.

The appellant was the plaintiff, and the appellee the defendant, in the court below. The complaint is in three paragraphs. Separate demurrers were addressed to the second and third paragraphs, the cause of demurrer being want of facts sufficient to constitute a cause of action. The demurrers were sustained, and proper exceptions saved. An answer in two paragraphs was filed, the first of which was the general denial. A demurrer was addressed to the second paragraph of the answer, the cause of demurrer being want of facts sufficient to constitute a defense to the action. The demurrer was overruled, and the proper exception saved. A reply was then filed in two paragraphs, the first paragraph being the general denial. A demurrer was addressed to the second paragraph of reply, the cause of demurrer being want of facts sufficient to constitute a good reply to the answer. The demurrer was sustained, and the proper exception saved. The appellee then withdrew the first paragraph of his answer, and the appellant the first paragraph of his reply, and the court rendered judgment for the appellee for want of a reply. There are four errors assigned: (1) The court erred in sustaining the demurrer to the amended second paragraph of the complaint; (2) the court erred in sustaining the demurrer to the third paragraph of the complaint; (3) the court erred in overruling the demurrer to the second paragraph of the answer; (4) the court erred in sustaining the demurrer to the secoud paragraph of the reply.

The first paragraph of the complaint was a common count for money had and received by the appellee for the use of the appellant, and as the facts alleged in the second and third paragraphs were proveable under the first paragraph, it is probable that there is no available error because of the action of the court in sustaining said demurrers.

The second paragraph of the answer is as follows: “Said defendant for further answer says that at the April term, 1883, of the circuit court of Henry county, Ind., the defendant herein, James W. Anderson, filed in said court his complaint, of which he alleged that this plaintiff, on the 2d day of August, 1882, by his certain promissory note promised to pay to the order of A. F. Zetter, December 25, 1882, the sum of $150.00, with 8 per cent. interest from date, and attorney's fees, which said note the said Zetter indorsed in blank to the said Anderson, and alleging that said note was due and unpaid, and demanding judgment thereon for $200.00; that process was issued upon said complaint, and served upon said Wright to appear in said court and answer said complaint; that said Wright appeared, and filed his cross-complaint, in words and figures as follows: ‘The defendant for answer to said complaint says: (1) That said note mentioned and set forth in plaintiff's complaint was given to the plaintiff in part consideration for a tract of land sold and conveyed by the plaintiff Anderson to the defendant James Wright, and that the defendant Zetter indorsed the same for the accommodation and as surety for said Wright only, and without other consideration; that at the time of the execution of the said note, and during his natural life prior thereto, the defendant Wright was very weak and feeble in mind, and not able to read or write, or to comprehend the meaning and force of deeds, notes, or other written instruments, and was wholly ignorant of the value of real estate or the difference in values or quality thereof; that a short time before the execution thereof of said note the said Wright had come into the possession of property and money by descent from a deceased brother to the amount and value of $1,800, all of which facts the said Anderson and his agents, prior to and at the time of the execution of said note, well knew, and then and there knowing the same, and for the purpose of and with the intent to defraud and cheat the said Wright out of his estate so inherited as aforesaid, then and there, to induce him to purchase the same at the price, represented to him that a certain tract of land situated in Decatur county, Ind., and described as eighty acres off of the north end of 112 acres as deeded by Harry Stout and wife to John A. Maddox, July 7, 1866, said lands being in sections 8 and 9, town 8, range 9, in said Decatur county, was of the value of $1,600, and that the plaintiff (said Anderson) had a good and perfect title thereto, and by means of said representations induced and caused the said Wright to purchase the said lands from the plaintiff, the said Anderson, at and for the sum of $1,600, and then and there obtained from the said Wright the sum of $400 in cash and the note mentioned in the complaint, and other notes mentioned in the complaint, amounting in the aggregate to the sum of $1,600; that the said Wright, in making said purchase, relied wholly upon the judgment and representations of the plaintiff (said Anderson) and his agents, and believed them to be true; that in truth and in fact said land was and is only of the value of $500, and the title thereto is imperfect, defective, and unsalable, of which the plaintiff and his agents at the time well knew, and the said Wright now brings into court a...