Dissenting Opinion on Petition foe a Rehearing.
Zollars, J.Upon a more careful examination of the record, I am satisfied that the petition for a rehearing ought to be granted.
It may be admitted that the fourth paragraph of answer states sufficient facts to withstand the demurrer, and* that there was technical error in sustaining the demurrer thereto. Yet the error, as I regard it, was entirely harmless to appellant. Our duty in such cases is clearly fixed by the statute and repeated decisions of this court.
The statute provides that “ No judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, for any defect in form, variance, or imperfections contained in the record, pleadings, process, entries, returns, or other proceedings therein, which by law might be amended by the court below, but such defects shall be deemed to be amended in the Supreme Court; nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court *588that the merits of the cause have been fairly tried and determined in the court below.” Section 658, R. S. 1881.
It has often been held by this court, as was held in the case of Traylor v. Dykins, 91 Ind. 229, that “A judgment will not be reversed by the Supreme Court, for an error in sustaining a demurrer to a paragraph of answer, when it appears that all the evidence, admissible under such paragraph, is also admissible under another paragraph of answer remaining in the record. Such an error is a harmless one.” Wolf v. Schofield, 38 Ind. 175; Works Pr., section 537, and cases cited; Rowe v. Major, 92 Ind. 206; Heshion v. Julian, 82 Ind. 576. Let us apply the rule of the statute, and the cases, to the case before us.
The answer consisted of a general denial and three affirmative pleas. A demurrer was overruled to the second and third, and sustained to the fourth. For the alleged error in sustaining the demurrer to the fourth the judgment was reversed. This answer is as follows: “ The defendant, for further answer to plaintiff’s complaint, says the consideration for which said note was executed has wholly failed in this, to wit, that the payee of said note * * * was engaged in the marriage-dowry insurance business, and the only consideration agreed upon by said payee and this defendant, for said note, was that the Allen County Marriage Benefit Association should issue and deliver to defendant, a certificate for one hundred and twenty shares of stock therein, within thirty days from date of said note, as shown by ‘ Exhibit A,’ filed as a part hereof; that no certificate was so issued by said association, nor delivered to defendant, and that plaintiff had knowledge thereof before he received said note. Wherefore defendant demands judgment for his costs, and other proper relief.”
The second answer, after many averments as to the representations made and means used to induce appellant to execute the note, refers to the exhibit filed with it, which is the *589same as that referred to in the fourth answer. The exhibit is set out in full in the opinion.
Following the reference to the exhibit, it is averred further as follows: “And at the time said receipt was so executed, it was agreed by, and in it expressed, that in the event that said association neglected or failed to issue a certificate upon said application herein mentioned, within thirty days thereafter, then the note so signed by defendant, in lieu of money paid, as therein set out, was to be returned to him, and its delivery and execution was not to be absolute until he received such shares of stock, all of which plaintiff well knew. * * * And defendant further, avers that said association never issued said stock, or any part thereof, nor delivered the same to defendant, but before the expiration of the thirty days aforesaid, said pretended association had surrendered all its franchises, or pretended franchises, and entirely disbanded and ceased to exist,” etc.
It will be noticed that this answer refers to the same exhibit as the fourth, and the averments in relation to the consideration, the promise of the stock and the failure to deliver it, are substantially the same as, in the fourth answer. Every fact set up in the fourth answer was clearly admissible under the second; if one shows a failure of consideration, clearly the other does. Each was pleaded as a bar to the action. The only possible distinction that can be made is, that in the fourth answer it is styled as a plea of failure of consideration, while the second is pleaded generally as a defence to the action. The code requires that the facts shall be stated in a pleading. When these are stated, the plea will be judged by the facts so stated, and not by what the plea may be styled. The facts stated in the fourth answer being admissible under the second, the sustaining of the demurrer to the fourth was, under the authorities above cited, a harmless error.
If, therefore, appellant did not introduce proof of those facts, if he had any, it was clearly his own fault. It may be *590observed in passing that it is very apparent from the special verdict of the jury that appellant was allowed to introduce his evidence in support of the facts set up in the answers; and, more than this, appellant’s testimony, with the testimony of the other witnesses, is in the record. Appellant was allowed to and did testify fully, and detailed the whole transaction ; identified the exhibit filed with the answers, which was read in evidence, and stated that he had never received the certificate of stock. It is very apparent that he stated all that he could state, or 'could have stated, had the fourth answer been in.
The error in sustaining the demurrer was a harmless error for another reason, and that is, that in no possible way could the result have been different. The note was commercial paper, as stated in the opinion; hence, if appellee was an innocent purchaser, for value, before maturity, his right to recover would not in any way be affected by the defence set up in the fourth answer. It is averred in the second answer that he was not such innocent purchaser. Appellant was allowed to introduce his evidence to prove that averment. In that he failed, as the jury found in the special verdict that he was an innocent purchaser, for value, and before maturity. That finding in this case is conclusive. This court has no right to assume or presume that by another trial appellant can produce a different result as to that fact, and it will not reverse the judgment to give him the opportunity of attempting it. It should rather be presumed that upon another trial the jury would again find that appellee was an innocent purchaser. Why, then, reverse the judgment to lot in a defence which in no possible event could be a defence against appellee’s right to recover ?
It has recently been held by this court that the exclusion of proper evidence, which could not have changed the result, is a harmless error. Bunnell v. Studebaker, 88 Ind. 338.
So, too, it has been held that the overruling of a demurrer *591to a bad answer is a harmless error when it appears by the answers of the jury to interrogatories that the verdict was found against the plaintiff upon other issues. Olds v. Moderwell, 87 Ind. 582. Soj it has been held that a judgment which is clearly right upon the evidence will not be reversed because erroneous instructions may have been given. Mand v. Trail, 92 Ind. 521. See, also, Wright v. McLarinan, 92 Ind. 103. And so, the sustaining of a demurrer to an answer, when the finding of the jury shows that the facts therein set up could not affect the plaintiff’s right of recovery, should be held to be harmless.
Filed June 21, 1884.It may be hard for appellant to pay the note, having received no valuable consideration; so, too, it would be a hard-, ship upon appellee to lose the money which in good faith he paid for the note. He had no knowledge of any defence to the note, and can not possibly be charged with any wrong or negligence in its purchase. As between him and appellant,appellant is in the wrong. By his negligence or stupidity the note was executed; it was commercial paper; appellee had the right to and did buy it in good faith. If either party should lose, it should be appellant, who made the loss possible.