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siding in the city of Indianapolis, for collection. Afterwards Ristine and McWilliams died, and the claims were assigned to Gish. The complaint avers that Claypool & Ketcham collected $479.50 on the claims, and that after deducting their attorney's fees there remained in their hands the sum of $446.75, of which sum they paid over to Gish $295.84, leaving due and unpaid the sum of $150.91. In this paragraph, as in the claim originally filed, the estates of Ristine and McWilliams are joined, as defendants, with Claypool & Ketcham. There was a joint judgment against all, by default. Claypool & Ketcham prosecute this appeal, and assign, among other alleged errors, that the complaint does not state facts sufficient to constitute a cause of action against them. The appellee had filed a motion to dismiss the appeal, on the ground that it has not been taken and perfected, according to the provisions of sections 2454-2457, Rev. St. 1881, inclusive, as amended by the act of April 11, 1885, (Acts 1885, p. 194.)
The proceedings, as presented by the record, are anomalous. To the estates of two deceased partners, which are treated as one separate entirety, like an existing partnership, the appellants are joined as defendants; and, because they are so joined, it is contended an appeal cannot be prosecuted by them, except under and in pursuance of the provisions of the statute regulating appeals in matters growing out of or connected with a decedent's estate. Section 2324, Rev. St. 1881, as amended by section 11 of the act of March 7, 1883, (Acts 1883, p. 156,) provides, in substance, that when any claim against a decedent's estate "is transferred for trial, * if it shall be shown to the court that any person is bound with the decedent in any contract which is the foundation of the claim, the court shall direct that the claim be amended by making such person a defendant in the action, and process shall be issued against and served upon him, and thereafter such action shall be prosecuted against him as a co-defendant with such executor or administrator, and judgment shall be rendered accordingly."
We need not decide whether, in case it had been shown to the court that the appellants were bound in any contract with either or both of the estates against which the claim was filed, the law regulating appeals in matters connected with the settlement of decedents' estates would or would not have controlled. It is enough to say the record discloses that the estates mentioned and the appellants, if liable at all, are not jointly bound in any contract, either express or implied, which constitutes the foundation of such liability. Before a party can be summoned in to answer to a claim filed against the estate of a deceased person, it must be made to appear that the person so summoned, and the person against whose estate the claim is pending, were jointly liable by a contract which furnishes the basis of the pending claim. Upon the face of the claim, as it appears in the record now before us, it is apparent that, if the estates of the deceased members of the firm of Ristine & McWilliams are liable to the claimant, such liability depends entirely upon the implied obligation which arose between Ristine & McWilliams when they received the claim from McManomy for collection. With that obligation Claypool & Ketcham have no connection or privity whatever. If they are liable, their liability does not grow out of any contract in which they were jointly bound with Ristine & McWilliams.
The right of a party to appeal under the Code of Civil Procedure cannot be cut off or abridged by joining him as a defendant in an action against an estate; such action being founded on a claim for the payment of which the appellant is not jointly bound with the decedent by contract. The motion to dismiss the appeal must therefore be overruled. The assignment of error already referred to must also be sustained.
If either paragraph of the complaint states a cause of action against any one, it is certainly not against the appellants. The facts stated in the claim, as originally filed, fail to raise even an inference that the money sued for was
ever received by the appellants. Nor do the facts there recited show that, if any money was received by them, they have not accounted for and paid it over to the persons entitled to receive it from them. Indeed, the inference to be drawn from the whole statement, including the affidavit of the claimant, is that whatever is due him is a claim against "the estate of Joseph Ristine and George McWilliams."
The second paragraph falls far short of stating facts which would entitle the plaintiff below to maintain the action. It does not charge that any part of the money remains in the hands of the appellants. Nor is it averred that there was any demand upon them for an accounting, or a refusal on their part to pay. The law is well settled that a suit cannot be maintained against an agent or attorney to recover money alleged to be in his hands until after a demand of payment by the principal, and a refusal to pay on the part of the agent or attorney. Pierse v. Thornton, 44 Ind. 235, and cases cited; Heddens v Younglove, 46 Ind. 212; Terrell v. Butterfield, 92 Ind. 1. The cases hold that this averment is so essential that a motion in arrest will be sustained on account of its absence from the complaint. Pierse v. Thornton, supra; Eberhart v. Reister, 96 Ind. 478.
It is claimed that the averment of a demand and refusal to pay is not necessary, because the appellants were joined as defendants in a claim against an estate. Even if the appellants had been properly joined, we think it would have been necessary that a sufficient statement of a cause of action against them should have been made. That fact could not have avoided the necessity of a sufficient complaint. But, as we have already seen, they were not properly joined with the estates of "Ristine and McWilliams," if indeed there was any claim filed, in the first instance, which gave the court jurisdiction over any person or estate. We know of no statute or practice which justifies the filing a claim against the estate of deceased partners by the method pursued in this case.
The judgment is reversed, with costs.
(1C8 Ind. 433)
BUCHANAN . MILLIGAN.
(Supreme Court of Indiana. December 11, 1886.)
1. APPEAL-LOST APPEAL-BOND-TRIAL-SPECIAL FINDINGS.
In an action on a lost appeal-bond, the special finding must so fully state ita terms and conditions that the nature of the undertaking, and the extent of the lia. bility of the obligors, may be made known as matter of law.
2. NEW TRIAL-IN APPELLATE COURT.
Where the special finding is apparently full and perfect, and it appears that nothing is to be done but to apply the law to the facts, then the mandate on the rever sal of a judgment should be that judgment be rendered on the special finding; but where it is evident that no injustice would result from directing a new trial, the judgment on reversal should be that a new trial be granted.
Appeal from circuit court, Huntington county.
C. B. & W. V. Stuart, for appellant.
ELLIOTT, C. J. When this case was in this court the first time, the complaint was held bad, and the judgment reversed. Buchanan v. Milligan, 68 Înd. 118. On the return of the case to the court below, the complaint was amended, and the amended complaint is again assailed; but, as we are without a brief from the appellee, we do not pass upon its sufficiency, and reverse the judgment upon another point, preferring this course in order that the subject may be more fully discussed. The judgment rests on a special finding of facts, and in such cases it is well settled that all the material facts essential to support a judgment must appear, for nothing can be supplied by intendment. Dixon v. Duke, 85 Ind. 434; Pittsburgh, etc., Co. v. Spencer, 98 Ind. 186, and cases cited; Indianapolis, etc., Co. v. Bush, 101 Ind. 582; Hasselman v. Carroll, 102 Ind. 153; Louisville, etc., Co. v. Balch, 105 Ind. 93; S. C. 4 N. E. Rep. 288; Pittsburgh, etc., Co. v. Adams, 105 Ind. 151; S. C. 5 N. E. Rep. 187.
In the finding before us there is one material fact, at least, not properly stated in the finding, and that is the character and condition of the appealbond on which the action is founded. The finding in this particular is defective. It is stated in the special finding that the defendant, Samuel Buchanan, executed the appeal-bond, but it is not stated that it was the bond sued on, nor are the terms and conditions of the bond set forth. In this condition of the record we cannot ascertain that the appellant executed the bond sued on, nor can we ascertain the terms and provisions of any bond executed by him. Where a defendant is sought to be made liable on an appeal-bond which is averred to be lost, as is the case here, its terms and conditions must be so fully stated that the nature of the undertaking may be ascertained, and the extent of the liability of the obligor be made know as matter of law.
The judgment is reversed, with instructions to grant the appellant's motion for a new trial, as this will accomplish substantially the same result as the award of a venire de novo, and justice will best be done in this way.
Section 660 of the Code provides, among other things, that the supreme court "shall remand the cause to the court below for a new trial when justice requires it," and in several cases like this we have pursued that course. Shannon v. Hay, 106 Ind. 589; S. C. 7 N. E. Rep. 376; Sohn v. Cambern, 6 N. E. Rep. 814; Higham v. Harris, 8 N. E. Rep. 255, (this term;) Western Union Tel. Co. v. Brown, 8 N. E. Rep. 171, (this term.)
There are cases where it is evident from the face of the record that injustice would result from directing judgment on the special finding, and in such cases we think it is not only within our power, but that it is our duty, not to direct judgment upon the facts contained in the special finding, but to remand the case for a new trial. It is by no means every case where this course will or should be pursued; but where, as here, it appears from the whole record that justice can only be done by directing a new trial, that course will be v.9N.E.no.5-25
adopted. Where the special finding is apparently full and perfect, and it appears that nothing remains but to pronounce the law, and apply it to the facts, then the mandate should be that judgment be rendered on the special finding. Usually the special finding does so exhibit all the facts as to make it apparent that all that need be done is to apply the law to them, and in such a case the proper mandate is to render judgment on the facts. It is an old maxim that "it is the duty of the judge, when requisite, to amplify the limits of his jurisdiction," and while, like most general maxims, it should not be taken without limitation, still it expresses the spirit of the law, which is that courts will exercise such authority as will promote the cause of justice, and prevent wrong. It is in accordance with this general principle that it is held that appellate courts may modify a judgment, or may reverse it, in whole or in part, as the justice of the case requires. Powell, Appell. Jur. 341. Our statute, as we think, intended to give express utterance to this general principle. Rev. St. §§ 661, 662.
The provision of the Code first referred to cannot be justly confined exclusively to cases where there is a motion for a new trial, and the reversal is based on the ruling on that motion; for in such cases that would be the natural result of the judgment of reversal without any express statutory provision. It needed no statutory declaration to produce that result where the judgment of the appellate court is founded on such a motion. It is evident, therefore, that the statutory provisions were meant to confer authority to do just what its terms imply,—that is, direct a new trial “in all cases where justice requires it;" leaving it for the supreme court to determine whether the case is one in which justice requires that a new trial should be directed; since to hold otherwise would be to declare that some of the words of the statute are superfluous, and this is a conclusion forbidden by long-settled rules of construction. This construction is the only one which gives reasonable effect to all the words of the statute, and relieves the legislature from the imputation of having used unnecessary and meaningless words, and it is, also, a construction which gives fair and just effect to a remedial statute which was meant to invest the highest court of the state with power to make such orders as will secure justice to litigants.
(108 Ind. 365)
NEW v. WALKER.
(Supreme Court of Indiana. December 7, 1886.)
1. CONSTITUTIONAL LAW-PATENTS-STATE STATUTE REGULATING SALE OF.
The Indiana act requiring vendors of patent-rights in that state to file an affidavit that they have authority to sell, and that the letters patent are genuine, and requiring them to file copies of the letters patent, and to insert in promissory notes executed in payment of rights thereunder, "given for a patent-right," is valid, and not in conflict with the federal constitution or acts of congress.1
2. PROMISSORY NOTES-CONSIDERATION-PATENT-RIGHTS.
A vendor of a patent-right, who sells the same in violation of the provisions of the Indiana statute, does not yield any legal consideration to the person to whom he sells such right for a promissory note executed in payment therefor.
3. PATENTS FOR INVENTIONS-SALE, WHAT CONSTITUTES-LICENSE.
Where a vendor of a patent-right assumes to transfer the right to use the patented article, and to manufacture it for use and sale within a designated territory, it is a sale of a patent-right, within the meaning of the Indiana statute, and is not a mere license.
4. PROMISSORY NOTES-ILLEGAL TRANSFER-CONSIDERATION-NOTICE-DUTY OF PUR
Where the purchaser of a note executed in Indiana for a patent-right has knowledge, prior to the purchase of the note, that it was given for a patent-right, it is his duty to ascertain that the vendor has complied with the statute of that state.
1See Horstman v. Zimmerman, (Pa.) 4 Atl. Rep. 171, and note; Castle v. Hutchinson, 25 Fed. Rep. 394; Wilch v. Phelps, (Neb.) 15 N. W. Rep. 361.
5. SAME-BURDEN OF PROOF.
The general rule is that, where one buys of an indorser of a promissory note who acquired the note without knowledge of any infirmity in the consideration, he is protected, although he himself had knowledge; but, where the note is shown to have been executed in a transaction conducted in violation of a statute, the plaintiff must affirmatively show that he was himself a good-faith purchaser, or that his indorser was such a purchaser.
6. SAME-NOTE PAYABLE TO BEARER.
A promissory note payable to bearer, and containing all the other requisites of commercial paper, is negotiable under the law-merchant, and protected in the hands of a bona fide holder who purchased without notice of the consideration.
7. SAME-NEGOTIABLE NOTE VOID IN HANDS OF BONA FIDE HOLDER.
A negotiable note is void in the hands of a bona fide holder when the statute expressly declares that it shall be void; but it is not void because executed in a transaction forbidden by statute under a penalty.
8. SAME-BONA FIDE HOLDER PROTECTED, ALTHOUGH NOTE EXECUTED IN VIOLATION OF STATUTE.
A bona fide holder of a note given for a patent-right, who purchased without notice of the consideration for which the note was executed, is protected, although the note was executed in violation of the Indiana statute.
9. PLEADING-AIDER BY SPECIAL FINDING-ERROR IN SUSTAINING DEMURRER.
An error in sustaining a demurrer to a good reply is not cured by the special finding of facts.
Appeal from circuit court, Hamilton county.
Action on promissory note.
B. F. Davis and Kane & Davis, for appellant. Stephenson & Fertig, for appellee.
ELLIOTT, C. J. The complaint of the appellant is based on a promissory note written in the usual form, payable in a bank of this state, and payable to bearer. The answer alleges that the note was executed in consideration of the sale and transfer to the appellee of the right to use and sell, for use in a designated part of this state, an agricultural boiler and steam-feeder, for which Puntan, to whom the note was executed, had obtained letters patent; that the sale and transfer of the patent took place in Hamilton county, in this state, on the tenth day of June, 1884; that Puntan had not then filed with the clerk of the court of that county a copy of his letters patent, nor had he filed an affidavit that the letters were genuine, and had not been revoked; and that he had authority to barter or sell the right to use the patented article, nor was there any clause in the note stating that it was "given for a patent-right." It is also averred that the appellant knew that the note was given in payment for a patent-right before she purchased it.
We have had occasion to consider the validity of our statute imposing certain duties upon the vendors of patent-rights, and have expressly decided that, in so far as it requires an affidavit from the vendor of his authority, and charges him with the duty of filing a copy of the letters patent, it is not in conflict with the federal constitution. Brechbill v. Randall, 102 Ind. 528; S. C. 1 N. E. Rep. 362. The reasoning of other cases decided by this court carries the doctrine somewhat further, and they lay down a principle that would, if carried to its logical conclusion, sustain the entire statute. Fry v. State, 63 Ind. 552; Toledo, etc., Works v. Work, 70 Ind. 253; Central Union Tel. Co. v. Bradbury, 106 Ind. 1; S. C. 5 N. E. Rep. 721; Hockett v. State, 105 Ind. 250; S. C. 5 N. E. Rep. 178. We accept as correct the conclusion to which the reasoning of these cases leads, and affirm that our entire statute is valid, and that it neither usurps any powers of the federal government, nor encroaches upon the national constitution, or violates any law of congress. This conclusion is fully supported by the decision of the supreme court of the United States in Patterson v. Kentucky, 97 U. S. 501, and by other decided cases. Tod v. Wick, 36 Ohio St. 380; Haskell v. Jones, 86 Pa. St. 173.
There are, as we know, cases which assert a different doctrine; but they