Or Petition for a Rehearing.
Howk, J.— In this case the appellants’ learned counsel ask a rehearing upon the ground chiefly that “the court overlooked, and did not decide,” in the preceding opinion, certain questions arising upon certain instructions of the trial court, which, they insist, were erroneous. Certainly, we did not de*20cidethe questions referred to; but we did decide what we regarded as the controlling question in the appellants’ case, and the one upon which their counsel seemed to rely in their original briefs for the reversal of the judgment. We do not now find it necessary to consider or decide any of the questions which appellants’ counsel claim we omitted to decide in our original opinion.
In this cause the appellants, entire case and defence are stated, by way of recoupment, in the fourth and fifth paragraphs of their answer or counter-claim. To each of these paragraphs the appellees-demurred, for the alleged insufficiency of the facts therein, which demurrer was overruled by the court, and to this ruling the appellees excepted. In this court the appellees assigned as cross errors the decisions of the court in overruling their demurrers to the fourth and fifth paragraphs of appellants’ answer or counter-claim. If these cross errors are well assigned, and we think they are, it is manifestly immaterial what, if any, errors of law occurred at the trial, for they could not, by any possibility, injure or harm the appellants. It is well settled, both by provisions of the civil code and by the decisions of this court, that a judgment will not be reversed for any error or defect in the proceedings which does not affect the substantial rights of the complaining party. Section 398, R. S. 1881; Fell v. Muller, 78 Ind. 507.
As stated in the preceding opinion, the appellants’ counsel concede in argument that the fifth paragraph of answer or counter-claim “ covers all the matters set forth in the fourth paragraph.” In our former opinion, we have given a full statement of all the allegations of fact contained in^the fifth paragraph of answer or counter-claim, and this statement need not be repeated in this opinion. In discussing the sufficiency of the facts stated in this fifth paragraph, upon the demurrer thereto, the appellees’ learned counsel make the following points for the decision of this court:
*21“First. There are no facts stated from which any damages are shown to have resulted to the defendants;
“(a.) Because it does not appear but that the defendants have done an amount of business fully equal to that which the plaintiffs represented they were doing, previous to the sale;
“(b.) The price agreed to be paid for the good-will is not stated, nor is it stated that the stock, good-will and monopoly, which they actually got, were worth less as a whole than they would have been if the business had been as extensive as was represented.
“Second. It does not appear from the answers that the defendants, as part of the transaction for which the notes were given, leased or acquired any right to the place where the business had been carried on, or that they purchased anything from the plaintiffs to which ‘ good-will’ could attach.”
"We are of opinion that these objections of appellees’ counsel to thé sufficiency of the fourth and fifth paragraphs of appellants’ answer or counter-claim are substantially well taken, and that the demurrer thereto, for the want of facts, ought to have been sustained. It does not appear from the appellants’ counter-claims that the appellees owned or controlled their store-room or place of business; but it is alleged therein that the appellants had obtained a lease for one year of such storeroom, not, however, from the appellees, or either of them, nor as a part of the transaction for which the notes in suit were given. The appellants did not allege in their counter-claims that they had carried on the business of hardware merchants, or- any other business, in such store-room or elsewhere, for the term of one year or for any other period of time. If it might be assumed, in the absence of any averment of the faet,_ that, after their purchase from the appellees, the appellants did engage and continue in the business of hardware merchants, in the said store-room, they also failed to allege in their counterclaims that their own sales were not “ then and there about $30,000 per year,” or even more, and, if less, how much less.
If, after their purchase from the appellees, the appellants *22did not engage in nor carry on the business of hardware merchants in the said store-room-, and we may assume that they did not, in the absence of an averment that they did, how could they be endamaged by the appellees’ representations, however false they might have been, in regard to the amount of their annual sales ? If the appellants did engage in and carry on said business in the said store-room, and their sales per year amounted to $30,000 or more, as, in the absence of an averment to the contrary, it may be assumed they did, what damages could or would the appellants sustain from the appellees’false representations in regard to the amount of their annual sales? The answers to these questions will readily suggest themselves and will clearly indicate, as it seems to us, how radically and fatally defective are the appellants’ paragraphs of answer by way of counter-claim. We are of opinion, therefore, that the court clearly erred in overruling the demurrer to these paragraphs, as neither of them stated facts sufficient, by way of counter-claim or otherwise, to constitute any defence to the appellees’ action. Thayer v. Younge, 86 Ind. 259. Upon the statements in their respective pleadings, we think the appellees were entitled to judgment for the amount due on the notes in suit, and in such case, although manifest errors may have intervened, the judgment must be affirmed. Section 566, R. S. 1881; Western Union Tel. Co. v. Fenton, 52 Ind. 1; Dorman v. State, 56 Ind. 454; McCloshey v. Indianapolis, etc., Union, 67 Ind. 86 (33 Am. R. 76).
Filed October 1st, 1883.The petition for a rehearing is overruled, with costs.