Thompson v. Oskamp

19 Ind. 399

• Court: Indiana Supreme Court
• Decided: November 15, 1862
• Status: Published

Opinion

Per Curiam.

Suit upon one of two five-hundred-dollar notes, given for the right to use a patent-right in the State of Ohio.

The first paragraph of the answer admitted that the two notes were given for a conveyance of the right, etc., but alleged that the payee of the note falsely and fraudulently represented that he had the exclusive right to sell, etc., in said State, and that the machine patented would perform in a specific manner; whereas, in truth, the machine would not perform in such manner, and the right was worthless.

The second paragraph was like the first, except that it averred, that he represented himself as the owner, while the paragraph did not negative the fact of ownership.

The fourth paragraph alleged, that the payee represented himself as the owner, etc., and then averred, that he was not the owner, and that he had no title.

The Court sustained a demurrer to the fourth paragraph, which, we think, was error, that paragraph being, in our opinion, good.

But it is contended that the error can not reverse the case, because the question of title was put in issue by the first and second paragraphs, and, hence, was triable upon those, But we think the whole case, including the briefs of counsel, shows that, in the Court below, those two paragraphs were treated as putting in issue the value of the right, not the title to it, and that a new trial should be granted, for the error in holding bad the fourth paragraph. See Cronk v. Col, 10 Ind. 485. An answer is not regarded as double, where one of two grounds of defense is not well pleaded.

T. W. and E. N. Wollen, for the appellant. Overstreet and Hunter, for the appellee.

The judgment is reversed, with costs. Cause remanded for further proceedings.