Krathwohl v. Dawson

On Petition for a Rehearing.

Jordan, J.

— Counsel for appellants insist that a rehearing ought to be granted because the court erred in its decision upon the following points:

1st. In holding that the representations of the appellant John Krathwohl, upon which appellee based his estoppel, would also serve to éstop his wife and coappellant herein when she set up the same facts in her defense to the action as were set up and relied on by her husband.

2d. In holding that the appellee who acquired the notes and held the ownership thereof, together with the mortgage by assignment, was entitled to avail himself of the estoppel existing in favor of his assignor.

3d. In not considering the motion in arrest of judgment.

4th. In not considering the motion to modify the judgment.

At the earnest request of appellants’ learned counsel, *5we have again examined and considered the questions involved in this case, and have carefully read the evidence.

There can be no question, we think, but what the co-appellant and wife of John IKrathwohl was, under the facts in this cáse, as stated in the first proposition, in like manner estopped as her said husband. Upon the second proposition, the rule is elementary that where the principle of estoppel relied on exists in favor of the holder of a note against the defense of the maker to the payment thereof, it is available in favor of the person to whom the holder assigns it. The reason of this rule is obvious, for if the estoppel did not operate in favor of the assignee, the value of the note in the hands of the assignor or holder would be materially decreased, and the right to sell and transfer all of his title thereto would be impaired. This principle of the law is fully supported by the authorities cited in the original opinion. The appellants press upon us for consideration as an authority in support of their position upon the question of estoppel herein, the case of Brickley v. Edwards, 131 Ind. 3, but the facts upon which that decison was based were quite different from those in this cause. This court, in that case, simply adhered to the rule “that declarations or representations made to one party can rarely operate as an estoppel in favor of another.”

It is contended, by the appellants, that the complaint is defective for the reason that it does not describe the mortgaged premises. But a copy of the mortgage was attached to and filed with the complaint and made a part thereof, and the description of the realty therein was referred to by proper allegations. This, we think, made the pleading sufficient on demurrer, and for the further reason that under the averments therein the plaintiff was entitled to recover upon the note that had matured. We must suggest, however, that the complaint in question *6is by no means a model, and can not receive the approval of this court as a specimen of good pleading.

The appellants complain of the court for overruling their demurrer to the second paragraph of the appellee’s reply to the answer. This demurrer was as follows: “Defendants jointly and severally demur to the second paragraph of plaintiff’s reply to answer filed herein, and for cause of demurrer say that said paragraph does not contain facts sufficient to constitute a good defense or reply to the answer filed herein.”

There is no such reason for demurrer recognized by the code, for it provides that the cause for demurrer shall be “that the facts therein are not sufficient to avoid the paragraph of answer.” Section 357, R. S. 1881 (R. S. 1894, section 360); Peden v. Mail, 118 Ind. 556.

The demurrer not being in proper form, there was no error in overruling the same.

There was no error in overruling the motion in arrest of judgment. The assignment of error on overruling the motion to modify the judgment was not argued by appellants in their original brief, and was therefore waived.

The judgment of the trial court is supported by the evidence, and, under the rule governing this court, we can not weigh.it in order to determine in whose favor lies the preponderance.

The petition for a rehearing is overruled, at the cost of appellants.

Filed Jan. 18,1895.