Sinker, Davis & Co. v. Fletcher

61 Ind. 276

• Court: Indiana Supreme Court
• Decided: May 15, 1878
• Status: Published

Opinion

Worden, J.

William Watson made a promissory note, payable to the order of Sinker, Davis & Co., payable at a bank in Indianapolis, and Sinker, Davis & Co. endorsed the same to the appellees, in blank.

This was an action by the appellees, against Watson, .as the maker, and against the appellant, as the endorser, of the note. The cause was dismissed by the plaintiffs as to Watson, and proceeded as to Sinker, Davis & Co.

Sinker, Davis & Co. moved to strike out parts of the complaint in reference to attorney’s fees, but the motion was overruled, and exception taken.

Sinker, Davis & Co. then filed a demurrer to the complaint, for want of sufficient facts, but the demurrer was overruled, and exception taken. Yo answer being filed, judgment was entered for the plaintiffs, on the overruling of the demurrer to the complaint.

Error is assigned upon the overruling of the motion to .strike out parts of the complaint, and in overruling the demurrer thereto.

The note contained an unconditional promise to pay /attorney’s fees, and the motion to strike out parts of the complaint was based on the theory that the promise as "to attorney’s fees was void. We decided that such unconditional piromise to pay attorney’s fees was valid, in the ease of Churchman v. Martin, 54 Ind. 380. That decision has been since followed, and we adhere to it. There was no error in overruling the motion to strike out.

We come to the demurrer to the complaint. The complaint does not profess to set out a copy of the endorsement. Rothing whatever is said therein about a copy of the endorsement. It does profess to set out a copy of the* note. The language of the complaint is : “ Said Watson, by his note, a copy of which is filed herewith as part hereof, promised,” etc.

A copy of the note is filed, and this is followed by what purports to be a copy of the endorsement of Sinker,, Davis & Co.

The action against Sinker, Davis & Co. is founded upon, the endorsement; and the question arises whether the' complaint is good where a copy of the endorsement is-thus filed, but the complaint does not profess to file such, copy.

Following the decisions of this court heretofore made,, we must hold such complaint insufficient.

Thus, in Price v. The Grand Rapids, etc., R. R. Co., 13 Ind. 58, it was said, after quoting the statute on the subject of filing the original or copies of written instruments on which the pleading is founded :

“ This rule seems to be imperative; the original instrument, or a copy, must be filed; and it seems to us that, an averment in the complaint that such has been filed, is-essential to the validity of that pleading.”

So, in Hiatt v. Goblt, 18 Ind. 494, a complaint to foreclose a mortgage, which did not profess to set out the* original or a copy of the mortgage or notes, was held bad, although a mortgage and notes were filed with the complaint.

In the case of The Peoria, etc., Ins. Co. v. Walser, 22 Ind. 73, 81, it was said:

“ It is further settled that, in order that the court may know that the written instrument is filed with the pleading, as constituting the foundation of the particular action, it must be identified by reference to it, and making-, it an exhibit in that pleading.”

It is claimed by the appellees, as we understand the. brief of counsel, that the endorsement was a part of the note; and, therefore, that when the plaintiffs professed in the complaint to set out a copy of the note, they also professed to set out a copy of the endorsement.

But we are of opinion, that the note and the endorsement were different instruments, conferring different rights and imposing different obligations, though written upon the same paper.

It is also insisted by the appellees, that the complaint ought to be deemed amended, in this court, under the provisions of section 580 of the code. But we can conceive of no ease in which a complaint will be deemed amended, in this court, which is so defective as that a demurrer filed to it, for the want of a statement of sufficient facts to constitute a cause of action, should be sustained, where the question here arises upon the correctness of the ruling below on.the demurrer.

We are of opinion that the demurrer to the complaint should have been sustained.

The judgment below is reversed, with costs, and the cause remanded for further proceedings.