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(146 N.E.)

21. Appeal and error 877 (2)-Verdict and finding on note not open to question by defendant where not rendered against him.

In action to recover purchase money for sale of a farm and on a promissory note given in part payment thereof, defendant could not question verdict and finding so far as note was concerned, where no judgment on note was rendered against him.

22. Vendor and purchaser

315(3)-Evidence held sufficiently to prove that note given in contract for sale of farm was for valuable consideration.

In action to recover purchase money for sale of a farm, and on a promissory note given in part payment thereof, evidence that makers executed note as part payment of purchase money for land sold by plaintiff to defendant and that it was delivered to plaintiff and accepted by him as such payment, sufficiently proved that note was given for a valuable consideration.

23. Bills and notes 92(1)-Note may be supported by consideration though not received by makers.

A note may be supported by a consideration, though it is not received by makers, it being sufficient if a consideration passes to some other person at their instance. 24. Trial 395 (7)-Finding that plaintiff had vendor's lien on land sold to defendant for amount of purchase money held not required to state that he was entitled to a foreclosure of such lien.

In action to recover purchase money for sale of a farm, court, having found that purchase money was due from defendant to plaintiff and was unpaid, and that plaintiff held a vendor's lien on land for that amount, was not required also to state conclusion that plaintiff was entitled to foreclosure of such lien.

25. New trial 70-Motion for new trial properly overruled, though no direct testimony in proof of certain facts in issue.

In action to recover purchase money for sale of a farm court did not err in overruling motion for new trial, though there was no direct testimony in proof of certain facts that were in issue, where there was evidence from which they might reasonably be inferred.

for the purchase of a farm, which the complaint averred had been fully performed on plaintiff's part by putting Rich in possession of the premises, and delivering to him abstracts showing that plaintiff had a good merchantable title, and executing and tendering deeds conveying the lands to him; also seeking to reform an alleged mistake in writing one word in the sale contract; and also seeking to recover on a promissory note payable to Fry and his wife bearing the signatures of appellants (defendants) Nelson and Badger, alleged to have been given in part payment of the purchase price for the farm, and to have been executed as part of the contract at the time it was signed, and to be referred to therein as given for that purpose. The jury returned a verdict against all three of the defendants for the amount due on the note, with interest and attorney fees, and also against Rich "on the contract in suit" for the remainder of the agreed price not covered by the note, with interest thereon. Assuming that the cause was of equitable cognizance, the court thereupon made a general finding for plaintiffs as against the makers of the note, Nelson and Badger, for the said principal, interest, and attorney fees, in the total amount of $1,190, without relief, and against Rich on his contract of purchase for the rest of the purchase money, with interest, in the amount of $12,720, and that plaintiff held a vendor's lien for the latter amount upon the lands sold; and it also found that the contract of purchase should be reformed as prayed. Judgment was rendered accordingly. The errors assigned challenge the overruling of appellant's several demurrers to the com

plaint, the overruling of their motion to require that the second paragraph of reply be made more specific, and of their motion for a new trial, and of each of certain motions addressed to the pleadings and to the judgment, respectively.

The complaint alleged, in substance, that the plaintiff Andrew Fry sold to the defendant Rich a certain described 80-acre tract of land for the agreed price of $13,000, clear

Appeal from Circuit Court, Starke Coun- of all incumbrances except a mortgage therety; Smith N. Stevens, Judge.

Action by Andrew Fry and others against Jacob D. Rich and others. Judgment for plaintiffs, and defendants appeal. Affirmed. Reidelbach Bros. and John M. Spangler, all of Winamac, for appellants.

George Burson, of Winamac, and Noel, Hickam & Boyd, of Indianapolis, for appel

lees.

EWBANK, J. This was an action by appellee Fry and his wife to recover purchase money alleged to be due on a contract between Fry and appellant (defendant) Rich

on of $3,000; that in reducing the agreement scription of the land that it was in "range to writing the scrivener wrote into the de

one west," whereas the agreement was for the sale of an identified tract in "range two west" that was otherwise properly described; that as so written the contract was signed by defendant Rich, and by the plaintiff Andrew Fry, who understood in its execution that it described the land actually sold; that it recited a covenant by Fry to convey said lands to defendant by a good and sufficient warranty deed, executed by himself and his wife, which should be delivered to defendant on or before March 1, 1921, and to fur

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[1-5] The allegation that on the date fixed by the contract for performance plaintiff put the purchaser's agent in possession of the lands, and that the purchaser was still in full possession and enjoyment of them, showed a waiver of strict performance of the preliminary conditions of the contract, which thereby was executed in part. Performance of the condition to deliver ab

nish defendant a complete abstract of plaintiff's title to said premises, brought down to date, and certified by a competent abstractor, showing a merchantable title to said premises, free and clear of all incumbrances except the mortgage for $3,000; that possession should be delivered to defendant Rich on or before the 1st day of March, 1921, and that the deed should be delivered at the office of the Nelson Land Company, at Monti-stracts showing and deeds conveying a good cello; and that defendant Rich should pay merchantable title was sufficiently alleged ; to Fry "$16,000 in the manner following: and the written contract set out as part of $1,000 evidenced by a promissory note of the complaint contained a sufficient undereven date, due March 1, 1921, bearing 6 per taking by defendant Rich to pay to plaintiff, cent. interest, and the balance of $12,000 in on or before March 1, 1921, as the purchase cash on or before March 1, 1921," and on price for his farm, $12,000 and interest therereceipt of the deed as therein provided. This on, for which amount judgment was recov contract was dated September 16, 1920, and ered. That plaintiff had a good title was was signed by Andrew Fry, and by "Jacob sufficiently alleged to withstand a general D. Rich by James Nelson." The complaint demurrer, by averring that he delivered to alleged that it was executed by defendant defendant's agent abstracts showing him to Rich, by Nelson as his agent and attorney have such a title, and tendered deeds executin fact, and its execution stands admitted on ed by himself and his wife conveying such a the record. The complaint further alleged title; and that Nelson was the agent of Fry that at the same time and as part of the in these matters was also sufficiently averred same transaction, Nelson, acting for and on describing him as such agent in connection to withstand a demurrer by the allegations behalf of Rich, together with Badger, executed their promissory note for $1,000 pay-relation to the contract. with the acts alleged to have been done with able to Fry and his wife on or before March [6] No motion to make the complaint more 1, 1921, at the State Bank of Monticello, specific having been filed, no question is pre Ind., with interest at 6 per cent. and attor-sented as to whether these averments would ney fees, a copy of which was made an ex- withstand such a motion. Section 343a, hibit as part of the complaint, and that it Burns' Supp. 1921; section 1, ch. 62, Acts was given as part of and to be credited upon 1915, p. 123. the purchase price to be paid by Rich for said land; that on March 1, 1921, plaintiff Fry delivered to Nelson, as agent for Rich, an abstract showing that Fry had a good merchantable title to said land, and tendered to him a good and sufficient warranty deed, duly executed by himself and his wife, conveying to Rich a fee-simple title to said land, and at that time surrendered to Nelson, as agent for Rich, "the possession of said premises, and which he is at this time in full possession and enjoyment, and he now and here brings into court for the defendant Rich said deed for said lands." It further alleged that the note was long past due and was wholly unpaid, that $100 was due thereon as an attorney fee, and that defendant Rich, though often requested to pay the remainder of the purchase money, had failed and refused to pay any part of it, and that there remained due and unpaid thereof $12,120, principal and interest. The prayer was for reformation of the contract by changing to "two" the word "one" mistakenly written into the description, for the recovery as against Rich of $12,120, and for the foreclosure of a vendor's lien for that amount upon the land sold, and the recovery as against all three of the defendants, without relief from appraisement laws, of the face of the note, with interest and attorney fees, "and for all other

[7] The allegation that the parties agreed for the sale of the land in range 2, and that the purchaser was put in possession thereof, but that by mistake of the writer in writing the contract it was made to read "range 1," and that the parties understood it as describing the land in range 2 in the execution of such contract, sufficiently showed a mistake that was subject to reformation. Parish v. Camplin, 139 Ind. 1, 11, 37 N. E. 607; Allen v. Bollenbacher, 49 Ind. App. 589, 594, 97 N. E. 817; Born v. Schrenkeisen, 110 N. Y. 55, 17 N. E. 339.

[8-10] The promissory note sued on is deemed prima facie to have been executed for a valuable consideration (section 9089x, Burns' 1914; section 24, ch. 63, Acts 1913, p. 120), and the contrary was not shown by the facts alleged. The wife of plaintiff Fry was a payee of the note sued on, and entitled to join in an action to enforce it, and to reform the contract of which it was alleged to constitute a part, thereby to show that in fact there was a valuable consideration for its execution.

[11] The "defect of parties" for which a complaint may be demurrable is too few parties; not too many. Frankel v. Garrard, 160 Ind. 209, 66 N. E. 687.

[12] And to be sufficient a demurrer for that cause must designate the proper parties

(146 N.E.)

[13] A motion to paragraph the complaint or to separate the causes of action stated in the complaint is not sufficient in form unless it specifies what are the different causes to be so stated separately, or so treated as different actions. Scott v. Indianapolis Wagon Works, 48 Ind. 75, 79.

did not do. State ex rel. v. McClelland, 138 | consideration, plaintiffs filed a reply of genInd. 395, 399, 37 N. E. 799. No error was eral denial, and a second paragraph stating committed in overruling the several de- that it was given and accepted as payment of murrers to the complaint. $1,000 of the purchase price of the lands sold to Rich, pursuant to the provision in the sale contract that notice of payment should be made of $1,000 by a note of the same date as the contract. This paragraph also alleged certain facts not necessary to be proved in order to show that the note really was given for a valuable consideration, and defendants Badger and Nelson filed a motion to make these latter allegations more specific. It was not error to overrule this motion, the allegations sought to be made specific not being material. Tecumseh Coal, etc., Co. v. Buck, 192 Ind. 122, 125, 135 N. E, 481.

[14] Overruling a motion to separate the complaint into paragraphs is not cause for reversing the judgment, even though sufficient reason exists for asking such separation. Kahle v. Crown Oil Co., 180 Ind. 131, 138, 100 N. E. 681; Ætna Ins. Co. v. Indiana Nat. L. Co., 191 Ind. 554, 556, 133 N. E. 4, 22 A. L. R. 402.

[15] The matter of docketing separately two or more different causes of action improperly joined is largely controlled by the sound legal discretion of the trial court. Langsdale v. Woollen, 120 Ind. 16, 18, 21 N. E. 659; Cargar v. Fee, 140 Ind. 572, 575, 39 N. E. 93.

[16] And the court did not abuse its discretion in this case, since the note sued on was alleged to have been executed at the same time and as part of the contract, which contained a reference to it, and reformation of the contract was necessary to make out a cause of action on the note, as against the plea of lack of consideration interposed by defendants.

[17] A motion that the cause be submitted to the jury for trial was sustained, and all the issues joined were so submitted. A motion by the defendants Badger and Nelson that the "issues of fact herein made by the plaintiffs' complaint and the defendants' answers herein as to the execution of the note set out and described in plaintiffs' complaint be tried separately from the issues of law and fact of equitable jurisdiction made by plaintiffs' complaint and the answers of defendants" was overruled. But, since the "execution of the note" was not put in issue, the only answers filed by Badger and Nelson, respectively, being pleas of general denial not sworn to, and pleas that the note sued on was given without any consideration, there could be no error in overruling this motion. And, as was suggested above, the execution of the note and contract were so connected, and the sufficiency of the consideration for the note was so dependent upon the reformation of the contract, that it was not improper to try all the issues at the same time. Even where the legal and equitable issues in a cause are separable and are tried separately, they may be tried "at the same time or at different times, as the court may direct." Section 418, Burns' 1914; section 409, R. S. 1881.

[18] To the answers of defendants Badger and Nelson that the note was given without

[19] The averments in this paragraph of reply that the parties (Nelson, Badger and plaintiff) agreed that plaintiff should accept the note in suit as part of the purchase price of the lands sold to Rich, and that Badger and Nelson executed it in lieu of the first payment thereon by Rich, and that plaintiff accepted it as a payment of $1,000 of the consideration to be paid by Rich for the land under the written contract of sale, were sufficient as an argumentative denial of the plea that the note was given without any consideration, and the other averments were not inconsistent with such denial. It was not error to overrule the demurrers for alleged want of facts to such a paragraph of argumentative denial. Heed v. Gummere, 192 Ind. 227, 232, 136 N. E. 5; State v. Daly, 175 Ind. 108, 111, 93 N. E. 539.

[20] The mere fact that there were other averments which had no proper bearing on the question whether or not the note sued on was collectable did not prevent the reply from being sufficient to withstand the demurrer.

[21-23] No judgment on the note having been rendered against Rich, he is not in a position to question the verdict and finding so far as the note is concerned. There was evidence that Badger and Nelson executed the note as part payment of the purchase money for the land sold by Fry to Rich, and that it was delivered to Fry and accepted by him as such payment. This sufficiently proved that the note was given for a valuable consideration. It is not necessary that the consideration for a note shall be received by the makers. If a consideration passed to some other person at their instance that is sufficient. Bingham v. Kimball, 33 Ind. 184; Moyer v. Brand, 102 Ind. 301, 304, 26 N. E. 125; Wheeler v. Barr, 7 Ind. App. 381, 384, 34 N. E. 591; Abelman v. Haehnel, 57 Ind. App. 15, 30, 103 N. E. 869; D. L. Adams Co. v. Federal Glass Co., 180 Ind. 576, 580, 103 N. E. 414.

[24] The court having made a finding that the sum of $12,000 or purchase money for the land sold by plaintiff to defendant Rich by the contract in suit with interest thereon, in

the total amount of $12,720, was due from | facture or transport any intoxicating liquor, said defendant to plaintiff, and was unpaid, nor receive any such liquor from a carrier, and that plaintiff had and held a vendor's lien on the land for that amount, it was not necessary for the finding also to state the conclusion that he was entitled to a foreclosure of such lien. That would be a conclusion of law from the facts stated.

[25] While there was no direct testimony in proof of certain facts that were in issue, there was evidence from which they might reasonably be inferred, and the court did not err in overruling the motion for a new trial.

The judgment is affirmed.

BLACKBURN v. STATE. (No. 24547.) (Supreme Court of Indiana. Jan. 30, 1925.) 1. Criminal law 274-Refusal to allow withdrawal of plea of guilty not abuse of discretion.

In prosecution for violation of liquor laws, refusal to allow withdrawal of plea of guilty held not abuse of discretion, where petition therefor, after stating accused did not manufacture or transport liquor, receive it from carrier, or maintain common nuisance, alleged that, because of facts set out, he was not guilty of any criminal intent, nor of crime charged, but failed to state specifically that he did not sell liquor.

2. Criminal law 1144(4)-Overruling motion to withdraw plea of guilty presumed proper, where facts do not show contrary.

Penalty for violation of liquor laws having been fixed under plea of guilty showing that under possible facts it would be too severe, held not to overcome presumption as to propriety of trial court's overruling motion to withdraw plea of guilty.

Appeal from Circuit Court, Delaware County; C. W. Dearth, Judge.

On motion for rehearing. Motion overruled. For former opinion, see 145 N. E. 486.

Isaac H. Gray and Francis A. Shaw, both of Muncie, for appellant.

U. S. Lesh, Atty. Gen., and O. S. Bolling, of Indianapolis, for the State.

EWBANK, J. [1] Nothing was alleged in the petition for leave to withdraw appellant's plea of guilty as to the entry of the plea having been induced by false promises or incorrect advice given by the prosecuting attorney, or by anybody else, nor as to his having asked leave to consult with an attorney. Nothing is made to appear as to what facts were shown to the court to aid it in fixing the penalty nor whether or not it heard evidence for that purpose as it would have the right to do. Smith v. Hess, 91 Ind. 424, 426.

Specifically asserting that he did not manu

nor maintain or assist in maintaining a common nuisance, appellant's petition did not directly mention the subject of whether or not he had sold, bartered or given away any liquor. But it alleged that he had the right to a trial by jury, and the right "to submit evidence in mitigation of the penalties of said laws," and also that "said judgment so finds the said defendant guilty upon said five counts as an entirety." And at the end of five typewritten pages, setting out many facts and not a few conclusions of the pleader, the petition concludes with the assertion (our italics) "that because of said facts aforesaid he is not guilty of any criminal intention to violate the laws of the state of Indiana, and is not guilty of the crime charged against him, or attempted to be charged in said affidavit." This fell short of a statement, under oath, that he did not sell intoxicating liquor; no statement to that effect being included among the averments of "facts aforesaid." And if he did so, having pleaded guilty to the charge, and the penalty having been fixed at $300 less than the maximum fine that might be imposed for that offense, together with the maximum term of imprisonment, we cannot say that the trial court abused its discretion in refusing to let him withdraw his plea.

[2] Counsel suggest possible facts under which this penalty would be too severe. But, so far as we are left to presumption or conjecture, in the absence of an affirmative showing the facts, we must indulge presumptions. that will sustain the action of the trial court, and not those which would overthrow it. The petition for a rehearing is overruled.

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(Supreme Court of Indiana. Feb. 4, 1925.) 1. Intoxicating liquors 236(7)—Evidence held to warrant inference that defendant was in possession of liquor, with intent to unlawfully dispose of it.

Evidence held to warrant inference that defendant was guilty of keeping whisky, with intent to unlawfully dispose of it in violation of Burns' Ann. St. Supp. 1921, § 8356d. 2. Criminal law 1159(1)-Inferences to be

drawn from evidence for trial court and jury, and not for appellate court.

The inferences to be drawn from the evidence are within the province of the trial court and the jury, and not for appellate court. 3. Criminal law 1132-Court may in its discretion grant request for oral argument made after time allowed for filing briefs.

The court may in its discretion grant a request for oral argument made after expiration of time allowed for filing briefs.

(146 N.E.)

Appeal from Circuit Court, Grant County; there is no proof that appellant did keep inJ. Frank Charles, Judge. toxicating liquor with the intent to dispose of it in the manner charged.

Nove Dudley was convicted of keeping whisky with the intent to unlawfully sell, barter, exchange, give away, or otherwise dispose of it, and he appeals. Affirmed.

Stricler & Messick and John A. Kersey, all of Marion, for appellant.

something stronger to drink by the two cus[1] The facts that, after being asked for tomers, the appellant went to the rear of the saloon and in a concealed place was found with a quart bottle of corn whisky, and that upon the appearance of a police officer one

U. S. Lesh, Atty. Gen. (Cronk & Wilde, of of the customers suddenly dropped a glass Indianapolis, of counsel), for the State.

which contained some liquor when the police officer reached to take possession of it, are sufficient upon which to base the inference that appellant was guilty of the charge of keeping whisky with intent to unlawfully dispose of it. Sloan v. State (Ind. Sup.). 141 N. E. 321; Chaney v. State (Ind. Sup.) 141 N. E. 223; Polonius v. State, 192 Ind. 664, 138 N. E. 259.

[2] The inferences to be drawn from the evidence were peculiarly within the province of the trial court and jury for consideration. Granting the claim of appellant, that his tes

TRAVIS, C. J. This is a prosecution for violation of section 4 of the act, known as the "Prohibition Law," as amended, for keeping whisky with the intent to unlawfully sell, barter, exchange, give away, and otherwise dispose of the same. Acts 1921, p. 736; Burns' Supplement 1921, § 8356d. The cause of action was instituted in the city court of the city of Marion, and a trial had, which resulted in a finding of guilty and judgment, from which defendant appealed to the Grant circuit court, where a trial by a jury result-timony, when considered alone, would carry ed in a verdict of guilty, and judgment imposing a fine of $150 and imprisonment at the Indiana state farm, from which judgment appellant appeals to this court. The error assigned is the overruling of the motion for a new trial, for the reason that the verdict is contrary to law.

The defendant, appellant herein, was by trade a glass-blower, who, because of a temporary closing of the industry, had for a short time been employed in a poolroom and soft drink saloon located in the basement of an hotel. Between 8 and 9 o'clock in the evening of the day the alleged offense was committed, two men entered the saloon and bought a soft drink, but asked defendant at the time, "Is this the strongest you got?" A few minutes later a police officer came in the saloon and found the defendant with the two men in an inclosure in the rear of the saloon, at which time defendant was holding a quart bottle of corn whisky, and one of the men was holding a drinking glass which contained some liquor which looked like whisky. The officer took the bottle of whisky from the defendant and reached for the drinking glass, but the man who held it dropped it to the floor, and it was broken. On their way to the police headquarters, after the officer had arrested defendant, the defendant told the officer that he was taking a chance and got caught. This narrative is the evidence of the police officer and appellant. Appellant testified to contradictory facts from which, if believed by the jury, an inference could be drawn that the two men with him in the rear of the saloon were of fering him a drink of the whisky in the bottle.

Appellant's proposition, as stated in his brief, is that the verdict is contrary to law because it is not sustained by sufficient evidence, and that, without the aid of inference,

the inference that he was not guilty, this court cannot determine which inference should be drawn and adhered to; there being ground for each.

The amended section of the statute upon which this action is founded was again amended in 1923. Acts 1923, p. 70.

[3] More than six months after appellant filed his reply briefs, he requests to be permitted to argue the case orally. While it is within the discretion of the court to grant a request for oral argument of the case, when made after the time allowed for filing briefs, this case does not warrant the exercise of the exception to the rule. Rule 6 of Rules of the Supreme Court. Judgment affirmed.

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2. Specific performance 10(1)-Specific performance will not be decreed to require purchaser to accept less land than called for by contract.

Performance of contract describing land as bounded by a named nonnavigable river, which made no mention of easements and rights of way between river and balance of tract, will

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