Wright v. J.R. Watkins Co.

• Decision Date: 26 January 1928
• Docket Number: No. 12880.,12880.
• Parties: WRIGHT et al. v. J. R. WATKINS CO. et al.
• Court: Indiana Appellate Court

86 Ind.App. 695

159 N.E. 761

WRIGHT et al.

v.J. R. WATKINS CO. et al.

No. 12880.

Appellate Court of Indiana, in Banc.

Jan. 26, 1928.

Appeal from Henry Circuit Court; J. R. Hinshaw, Judge.

Action by the J. R. Watkins Company against D. G. Douthitt and others. From a judgment for plaintiff, defendants George C. Wright and Lafayette Peck appeal. Affirmed.McDaniel & Myers, of Shelbyville, for appellants.

John H. Kiplinger, of Rushville, and Paul Brown, of New Castle, for appellees.

NICHOLS, J.

Action by appellee Watkins Company against appellee Douthitt and appellants on a contract executed by appellee Watkins Company, a corporation, and appellee Douthitt. The Watkins Company agreed in said contract to sell Douthitt certain goods, wares, and merchandise at an agreed price therefor, for which Douthitt agreed to pay, and further, in said contract it was agreed that at the time of the execution of the same, December 1, 1921, Douthitt owed the Watkins Company $1,128.90, and by the terms of said contract the time for the payment of said indebtedness was extended to March 1, 1923. Appellants jointly, severally, and unconditionally agreed to pay to appellee Watkins Company the said sum of $1,128.90, and for other goods and articles as provided by the terms of the contract.

The complaint alleges that, in addition to the $1,128.90, the sum of $326.94 is also owing to appellee Watkins Company for goods, wares, and merchandise shipped to Douthitt; that there is due and owing to appellee Watkins Company the sum of $1,454.75, with interest thereon from March 1, 1923.

To the complaint appellants and appellee Douthitt answered in general denial, and also a second paragraph of answer alleging payment. Appellant Peck also filed a cross-complaint alleging that he was only surety for appellee Douthitt, and asking that the question of suretyship be adjudicated. To the second paragraph of answer and to the cross-complaint the Watkins Company replied in general denial.

A trial by court resulted in a finding for appellee Watkins Company that Douthitt owed said appellee $1,742.41, and that for $1,734.92 of said sum appellants were also liable; that appellant Peck was surety only on the contract; and that, if he should pay the judgment rendered, he should have the benefit thereof against appellee Douthitt and appellant Wright. Appellants' motion in arrest of judgment was overruled, after which judgment following the finding was rendered against Douthitt and appellants, and for appellant Wright on his complaint averring suretyship. From the judgment on the complaint after appellants' motion for a new trial was overruled, this appeal, appellants assigning the errors hereinafter considered.

[1] Appellants undertake, first, to present that the complaint does not state facts sufficient to state a cause of action, but they failed to demur to the complaint, and it is well settled that a complaint may not first be so attacked on appeal. Riley v. First Trust Co., 65 Ind. App. 577, 117 N. E. 675;Malone v. Kitchen, 79 Ind. App. 119, 137 N. E. 562;Land, etc., Co. v. Campbell, 184 Ind. 647, 112 N. E. 97. Further, no such objection having been stated by demurrer, it is expresslyprovided by chapter 157, Acts 1911, that it is deemed thereafter to be waived.

[2][3] The only valid grounds which appellants present for their motion in arrest of judgment is that the complaint does not state facts sufficient to state a cause of action; but, as stated above, this objection has been waived by the failure of appellants to demur to the complaint for that reason. However, the appellants were not harmed by the waiver. As one of their proper grounds for their motion in arrest of judgment, appellants undertake to present that it appears by the complaint that the appellee Watkins Company was a foreign corporation and that there are no facts alleged in the complaint that it was qualified to transact business in the state. They argue that a demurrer for want of facts puts in issue the plaintiff's right to sue. But there was no demurrer for want of...