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uppelleo regarded them as true; that said screens wore of no value,
and woxild not clean wheat rapidly and effectually, and could not
begot at Salem for five dollars/'

Their€3 are three, and only three, substantive representations
chargocl. One of these is that the screen was of great value; an-
other is that it would clean wheat rapidly and effectually; and the
other is ^ij^t the screens could be bought at Salem for five dollars.
Ofthes^ in their order:

^8 to the first of the representations there is no difficulty at all,
ana we -may dismiss it with the single remark that representations
o^valxi^ do not constitute fraud. .

iae Second of the representations alleged is an assertion that the

screen "Would do a named thing rapidly and effectually. This is

^^•'y^T^o more than the expr .ssion of the vendor's opinion of the

capae\t.y of the article which he offers for sale. The words "effectu-

'^lad *' rapidly " are merely descriptive of the manner in which

^^*^^oliine offered by the vendor would do its work, and are not

* /^^^tions of substantive facts. These words do not affirm the

stetioo of a material and substantive fact, but simply qualify

® ^ ol i-mation that the screen would clean wheat by stating the

V^^^"*^^ manner in which it would perform that work. A recent

^^^ "thus expresses the rule which applies to such representations

^o^o alleged in the pleading under examination: ''Statements

, ^ tlxe operation and utility of an invention must, in most cases,

''^^^o matter of opinion, upon which therefore a purchaser can-

^ot sa.f'^iy rely." Bigelow on Fraud, 13. This is the well-settled

^^rifc^ of this court. Hunter v. McLaugMiiiy 43 Ind. 38; Oatling

^- ^e^eyelly 9 id. 672; Kernodh v. Hunt, 4 Blackf. 67. The general

. ^^t of authority runs with the cases in our own court, and

^^ all the cases thus holding do but enforce the old and well

^^S^xzed maxim, simplex commendatio non obligat.

^^^ third of the allegations of fraudulent representation is, that

Digitized by




Neidefer v. (atastain.



appellant's assignor represented to the appellee that the screens
could be purchased at Salem^ for the price of five dollars.

There is nothing at all in the answer to show that this Tact was
material^ and it is well settled, that to constitute fraud, the repre-
sentation must be of a material fact For any thing that appears,
the screens could have l»een bought at a place much nearer the ap-
pellee than Salem, and for a much less price than five dollars. If
the screens could have been purchased at a less price than five dol-
lars, at a place nearer than Salem, the appellee was not injured, and
fraud without damage cannot be a defense. WtUy v. Botoard, 15
Ind. 169. The representation cannot therefore be deemed to be of a
material fact The truth of the representation is negatived by aver*
ring that the screens could not be purchased at Salem, but there is
no allegation aiding this by showing any injury flowing from the
falsity of such statement ; for it is not alleged that they could not
have been purchased for even a less price and at a more convenient

The appellee insists, that as the answers assailed by the appellant
contain the general allegation that the screen was worthless, they
are good, although in all other respects altogether defective. Waiv-
ing, for the moment, an examination of the propositions made by
appellee and looking to the answers, we find that one, at least, hardly
supports the assumption he makes, for it does not afSrm the article
to be worthless. The second paragraph puts the allegation upon
this point in these words : '^ That said machine failed to perform
as Brown represented, and that it was utterly worthless for the pur-
pose for which the same was purchased.'' This does no more than
charge ; that the article was worthless for one purpose ; it by no
means goes to the extent of affirming it worthless for all purposes
Under the rule declared in Louden v. Birt, 4 Ind. 666, this answer
was clearly bad, if for no other reason than that it failed to show the
article to be valueless.

Keturning to a consideration of the general proposition stated
by appellee, we find the case first cited by him to be MooJdar v.
LewiSy 40 Ind. 1. That case is not in point, for there the question
came up on a motion for judgment on the answers of the jury to inter-
rogatories, and it was held that the answers did show that the article
was valueless, and that this was sufficient to sustain the plea of want
of consideration. The question presented by the present case is very
different ; for the pleadings here attempt to interpose the defense of

Digitized by


NOVEMBER TERM, 1880. 201

Neidefer v. Chaatain.

litiw^y &x^^3 we must look, not to the general conclasions stated, but
to the m.^terial traversable facts alleged, and from these judge
whether ^^ny defense is made out.

The ocx^e of Morehead v. Murray, 31 Ind. 418, is pressed upon
our consi<3eration with much earnestness. That case is not well
con8ider^c3^ no argument is made, nor are any authorities cited in
supporfc of the proposition, that an answer attempting a defense
upon tlx^ ground of fraud is good, if it contain the allegation that
thothin^- constituting the consideration of a promissory note was
worthloss, although it lack all other material allegations. All that
is there s^aid upon the proposition here involved is : *' There was no
error in overruling the demurrer to the second paragraph of the
answer, Jt denied that the trees and vines were of any value what-
ever. The answer in the case referred to was unquestionably
good, l> XX t the wrong reason for upholding it was assigned by the
conrt. "Xhe bare general allegation that an article was worthless,
ihTovijx into a plea attempting to set up the defense of fraud, can-
Do^Uxalco good a plea which without it would be bad. The mate-
> substantive facts pleaded are those upon which the validity of
uv(i plea, must depend ; its sufficiency cannot be made to depend
upon a sweeping concluding statement that the article was wholly
without value. If this were the rule, then every plea attempting
e aefeiige of fraud could be made good by adding the general alle-
gatiou fhat the article. was valueless. This we think utterly incon-
sisteat with the rules of pleading, and we also think that such a
practice \vould lead to confusion and injustice. Especially would
\i^*^^ ^o evil results in the trial courts, where time is not always
owe^ |.Q critically examine pleadings, and a pleading made good
y aix iBolated general statement might often mislead both court
*° ootiiisel, who would naturally consider, not detached general
^J'^^^ions, but the general frame and drift of the entire pleading.
^ ^^Hitrine for which appellee contends, and which is lent some
PPort by the case cited, is opposed to sound general principles
an otigj^t not to be sustained. Wo fully approve the doctrine, that
^ ?!^^*^1 plea of want of consideration is good, and nothing here
^ ^^ intended to impugn its correctness, but we do disapprove
tha doctrine which holds ttat a plea attempting to construct a de-
lem ot fraud, and defective in every material particular, can bo
mattQ goQ^ jjy simply adding the general allegation that the article
cotvv-Tacted for was worthless. To permit this would be to permit
Vol. XXXVI— 26

Digitized by



Helzer v. Heizer.

sweeping and vague assertions to control specific statements of tra-
versable facts. The doctrine of Morehead v. Murrayy if given ef-
fect, would break down the long and well established rule, that \i
:i party gets all he knowingly contracts for, he will not be allowed to
j)load that ho got no consideration. Baker v. Roberts, 14 Ind. 552;
flardetifj; v Smith, 3 id. 39 ; Harvey v. Daktn, 12 id. 481 ; Taylor
V. Huff, 7 id. 680 ; Louden v. Birt, 4 id. 5G6 ; Smock v. Pierson,
68 .'d. 405; Hess v. Young, 59 id. 379 ; Benjamin on Sales, 120. If a
plea shows that a party got what he contracted for, that he volunUi-
rily, and with knowledge of the thing for which he bargained, deliber-
ately contracted, he cannot escape liability upon the single, unsup-
ported allegation that what he did get was worthless. It might
well be that he got exactly what he contracted for, and that the
thing he got was entirely without value, and there still exist a
binding obligation to pay what he had contracted to pay.

Judgment reversed, at the costs of appellee, with instructions to
sustain the demurrers to the second and third paragraphs of

Judgment reversed.

Heizbr v. Heizbb.

m Ind. 536.)

Annuity — not apportionable,

A 0cm, for a valaable consideration, agreed to paj his father a specified buih.
on a fixed day, annQally, during the father's life. The father died twenty
days prior to the day for payment. IIM, his administrator could not re-
cover the proportion accrued and unpaid at the time of his death.

ACTION for an annuity. The opinion states the cases. Tlu-
plaintiff had judgment below.

IJoWE, J. In this action, the appellee, as the administratrix of
the estate of Samuel Heizer, deceased, sued the appellant, upon a
certain written instrument, executed by him to the appellee's in-
testate, in his lifetime, of which the following is a copy :

" Whereas my father, Samuel Heizer, did on or about the 6th
day of October, 1866, bargain and sell to me certain real estate in

Digitized by


NOVEMBER TERM, 1880. 203

Heizer y. Helzer.

Marion county, iDdiana (as he has done to his other children), in

^fls/deration of natural love and affection and the payment an-

^^liaJly by me of $100 for the maintenance and support of the said

'Samuel during his natural life; and wjxereas, at my request and

oefore the conveyance thereof to me by the said Samuel, he did

convey the same to Elijah P. Fletcher, and did pay the considera-

'-jon thereof to me. Now, in consideration of the premises, and in

iien or a mortgage which I agreed to give upon said land sold as

abovo, I <]o hereby covenant and agree to pay to the said Samuel

neizei- tl^esumof $100, annually, on the 6th day of October of

eac« yea,x* during his natural life, without any relief from valuation

ot ^\>prsii semen t laws. Dated this 7th day of February, 1870.

(Signed) '' Robert C. Heizsr.

**A.ttc*sr : William Wallace.''

Ihe axppellee alleged in her complaint, inter alia, that the b^H
Samuel Xleizer died on the 16th day of September, 1876, and that
there w^j^ jue said decedent's estate from the appellant, and unpaid,
the suiri. of $98, as a part of the annuity of $100, which would
avebeoonieduo to said Samuel Heizer, under the aforesaid written
iDstrurri^jjt^ on the 6th day of October, 1876, if he had lived until
tiiatdoy. Wherefore, etc.

^^ Ciiiusc, having been put at issue, was tried by the court, and

. ^**^^ was made for the appellee in, the sum of $101.57, and

J ^^^^Cirit was rendered accordingly. The appellant's motion for c\

^'^^xl having been overruled by the court, and his exception

^c> this ruling, he has appealed from the judgment rendered

, ^ ^ <^ourt, and has here assigned, as errors, the following decisions

^^^ CJircuit Court :
, . * Iri sustaining a demurrer to the amended third pamgraph of
"^^vrer: and
" . ^ *^ overruling his motion for a new trial.
, "^ ^ oonceded by the appellant's counsel, in his brief of this cause,
*-l-kose two alleged errors present for decision one and the same
^ ^^^11. In this opinion we will consider and decide this question
^ ^^ ^ame is presented by the second alleged error, namely, the
^^ing of the appellant's motion for a new trial. In this mo-
^ * ^^r^e causes assigned for such new trial were, that the finding
*^^^ A ^^^8°^^^*^ of the court were not sustained by sufficient evidence
au ^voTe contrary to law. The evidence on the trial was an agreed

Digitized by



Ueizer v. Heizer.

statement of the facts of the case^ in substance^ as follows : '^ That
Saninel Ueizer was a man of full age, and the father of the de-
fendant; that the contract sued on was executed by the defendant;
that all moneys due upon said contract up to the 6th of October,
1875, were fully paid by the defendant; that Samuel Heizer died
on the 16th day of September, 187(5, and that the annual payment,
which would have fallen due on the 6th of October, 1876, has not
been paid, nor any part thereof/'

It will be seen from the contract in suit, a copy of which we have
given, that the appellant covenanted and agreed therein to pay a
certain sum annually, on the 6th day of October of each year, to
Samuel Heizer during his natural life. The sum thus to be paid
comes clearly within the legal definition of an annuity. Samuel
Heizer died on the 16th day of September, 1376, twenty days
prior to the day on which his annuity for that year, if he had con-
tinued in life, would have become due and payable by the appellant
The question arises therefore, and this is the only question for
decision in this case, could there be under any rule of law or equity
any apportionment of the annuity in favor of the administratrix of
the decedent's estate, proportioned to the time which elapsed
between the next preceding day of payment, the 6th day of October,
1875, and the 16th day of September, 1876, the day of the decease
of the annuitant? The trial court virtually decided that there
could be such an apportionment of the annuity, and made its find-
ing in favor of the appellee for the time which elapsed between the
6th day of October, 1875, and the day of the annuitant's death,
the 16th day of September, 1876, at the rate of $100 per year, with
interest added; and over the appellant's motion for a new trial the
court rendered judgment in accordance with its finding.

In Wiggm v. Swett, 6 Mete. 194, the court said: ''The general
rule both of law and equity is, and is admitted by the appellee's
counsel to be, that where an annuity is payable on fixed days dur-
ing life, and the annuitant dies before the day, the personal repre-
sentative is not entitled to a proportionable part of the annuity.
1 Roper on Leg. (1st Am. ed.) 589." In Manning v. Randolph^ 1
South. 144, it appeared that one Mary Manning, who was entitled
to an annuity, payable on the 12th day of April, yearly, had died
only eight days before the annuity for the year became due, and
the court said: ''No principle is better settled than that if a bond
be for the payment of an annuity at a day certain, and the annui-

Digitized by


NOVEMBER TERM, 1880. 205

Heizer v. Helser.

tani die before the day, the annuity for that year is lost.** So
also in Tracy v. Strong^ 2 Conn, 659, which was an action of debt
on a bond executed to secure the payment of a certain sum of
money to a certain person on the first day of May annually during
her natural life, the court said: '' It appears that the bond in snit
was for the payment of a certain sum annually^ on a given day.
It comes clearly within the definition of annuity. Where a certain
sum is due on a future given day, no part is due till that day, and
it is fully settled by all the authorities that there is no apportion-
ment of an annuity.*'

These decisions are in strict accordance with the rules of the
common law. We have been unable to find any reported case, and
the appellee's counsel has not cited any decision in which a differ-
ent doctrine is recognized. The common law of England, in so far
as it is not inconsistent with the organic or statutory laws of the
United States or of this State, is a part of the law of this State. In
conformity with the law of the cases above cited, we feel constrained
to hold as we do in the case at bar, that there can be no apportion-
ment of an annuity, and that by the death of Samdel Heizer on a
day prior to the day on which, if he had been living, his annuity
would have been due and payable, his annuity for the year in which
he died became and was wholly lost, so that the appellee as the
administratrix of said decedent's estate was not entitled to a pro-
portionable part of such annuity. We are of the opinion, therefore,
that the finding of the court in the case now before us was contrary
to law, and that for this reason the appellant's motion for a new
trial ought to have been sustained.

The judgment is reversed, at the appellee's costs, to be levied of
the estate of the decedent, and the cause is remanded with instmo*
tions to find for the appellant, the defendant below, on the agreed
statement of facts, and render judgment accordingly.

Reversed and fnmamded.

Digitized by





WiLLiAJffsoK V. Chicago, R. L, and P, E. Oo.

(B8 Iowa, 126.)

ControLct — validity — publio policy,

kn agreement hy a railwaj company, in consideration of a grant of lands in a
citj, that U would baild and maintain a station thereon and nowhere else
iij^.the city, is illegal and Void as against public policy, and no remedy will
be granted for the company's subsequent erection of a station on other lands
in the city. (See note, p. 214.)

ACTION of damages for breach of contract. The opinion atates
the case. The plaintiff had judgment below.

Wright^ Gatch i£' Wright ^ for appellant. \

n, W. Maxwell and P. Qad BryaUy for appellees.

Day, J . The petition alleges that in consideration of the con-
Teyance of the lots in question, the defendant proposed to contract
to '^ build all itsdepots, both passenger and freight, which it might
or would build in the said city of Des Moines, on the east side
of the Des Moines riyer, in the said East Des Moines ; and on the
lots 80 transferred and oonyeyed to it/' and that ^' the plain tifb

Digitized by


JUNE TEKM, 1880. 207

Wmianlflou V. Chicago, R I. and P. R. Co.

agreed to and accepted the said proposition upon the terms offered
by the defendant/' The petition further alleges that " the defend-
ant for a long time after the occupation of said lots, and the
building of said temporary depot, gave out in speeches and held
out inducements, and encouraged the plaintiffs to believe that they
wei-c still going to build their permanent depot on the said lots in
the said East Des Moines, and that they would not build one any-
where else in the city of Des Moines," but that the defendant "does
fail and rcfu>e to comply with the said contract or any part thereof,
by building its permanent and only depot on the said lots on the
«ttst side of the Des Moines river, as it had contracted to do,'' and
instead thereof proposes to, and has already commenced to build
its permanent and chief passenger depot on the west side of the
l>e8 Moines river iu West Des Moines/' The plaintiffs allege that
by "the willful, wrong and fraudulent representations, and viola-
tions of said contract by the defendant, they are damaged in the
inoney contributed by them, an d the conveyance of said lots to the
<lcfendant, and the time and labor expended in the same, and the
depreciation of the value of their property, in the aggregate sum
^^ forty thousand dollars." The evidence is in entire harmony with
tbose allegations of the petition,
f^^itting a statement of it.]

is evident, both from the allegations of the petition and the
^Wcx^cg submitted in support of it, that the contract which the
pk/I //ff a claim the defendant made was that it would erect a pass-
enge:*' clcpot in East Des Moines, and would erect no passenger
jepo^ ill West Des Moines, and that the substantial cause of the
plain tif^g complaint is, not that the defendant has failed to con-
struct ^ depot on the east side of Des Moines river, but that it has
con&tx-^^^^gj a depot on the west side of the Des Moines river. The
eTiQOi:!^^^ shows very clearly *• that the business, commerce, trade
^^ocessities of the city of Des Moines" demand, and have
deiftu-mjed from the time the road crossed the river, a depot on the
^^ ^ido of the river. The important question in this case, and
ono which we think is decisive of it, is this: Is the contract in
(pestxQjj yalid, so that damages may be recovered for a breach of it,
0^^^ It Toid as against public policy?
^^ tlio case of the Jacksonville (& Chicago R. R. Co, v. Mathers^
'^^^ ^^i. 592; s. c, 22 Am. Rep. 122, it was alleged that Mathers
convoyed two hundred lots in tlie town of Ashland to trustees for a

Digitized by



WUUamaon ▼. Chicago, R I. «&d P. R. Coi.





railroad company, on condition that it should build no statioii
within three miles of Ashland. Upon the breach of this condition
Mathers commenced an action to compel a reconyejance of the
property. In the court below the relief asked was granted. The
Supreme Court, reversing this judgment, said: ^The alleged
agreement or condition, on account of the non-performaoce of
which relief is here sought, was that a railroad company, chai'tered
by an act of the legislature, and invested with the power of con-
demning private property upon the ground that its road is for the
public use, shall not establish a depot or station within three miles
of Ashland. It cannot be pretended for a moment that the board
of directors had authority to make such an arrangement or condi-
tion. They were trustees both for the public and the stockholders
of the company, and in the discharge of their two-fold duty were
required to act with reference to the public convenience on one
hand and the private interests of the stockholders upon the other.
The interests * * * both of tho stockholders and the public,
forbid that there should be a positive prohibition against the estab-
lishing of stations at any points on the line of the road. Whenever
the public commerce requires that a station on a railroad should be
established at a particular place, and it can be done without detri-
ment to the interests of the stockholders of the company, the law
authorizes it to be established, and no contract between a board of
directors and individuals can bo allowed to prohibit it. * * *
Appellee stands in pari delicto with the board of directors, so far
as this agreement or condition is concerned. He voluntarily, ac-
cording to his own showing, contracted for the breach of trust
toward the stockholders of the railroad company, and breach of
duty to the public at large. Their loss was his gain. He was will-
ing, at whatever expense it might be to others, to purchase a
monopoly whereby to enrich himself, and having failed to accom-
plish his purpose, now asks a court of equity to reinstate him in the
condition he was in before entering into this unlawful combination.
The case presents no facts or circumstances meriting the consider-
ation of a court of equity."

In St. Joseph & Denver City R. R. Co. v. Ryan, 11 Kans. 602 ;
s. c, 15 Am. Rep. 357, an action was brought by a land-owner for
the breach of a written contract in which the company agreed to
place a depot on land conveyed to it by the plaintiff, and not at any
other time to have or use any other depot within three miles of said

Digitized by


JUNE TERM, 1880. £09

Williamson v. Chicago, R. L and P. R. Co.

dei>ot. rrhe plaintiff recovered $6,500 damages. Reversing this
jadgmer^t^ the Supreme Court said : "Railroad corporations are, as
we bavo seen, public agencies, and perform a public duty. They
are ^Senc^ies created by the public with certain privileges and sub-
ject to cextain obligations. A contract that they will not discharge
or by ^which they cannot discharge those obligations is a breacli of
tb»*' public duty, and cannot be enforced. * * * It is the duty
o^ * "^iliroad company to furnish reasonable depot facilities. The
tiUtDber" and location of the depots so as to constitute reasonable
depot :r^<oilitie8 vary with the changes and amount of population
and bu 31 ness. A contract to leave a certain distance along the line
of the voad destitute of depots is in contravention of public policy."
Some ciovirts have gone much beyond the doctrine of these cases
and n^-v^ held that an agreement between an individual and a i^ail-
ro*<*^oictfc.pany for the location of a depot at a particular place, in
conaaoir^tion of money or property, is against public policy and
void. s^^ p ji j^ Q^^ ^ Seeley, 45 Mo. 212 ; Marsh v. Fairhirg,
ete-y^jf. Co.^ 64 HI. 414 . g. c., 16 Am. Rep. 564 ; Bestor v. Waihen,
60 DU X38; Fuller r. Dame, 18 Pick. 472; Hclladay y. Patterson,
5 ,^^^S* 177. Whilst we may not feel like going to the extent of

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 25 of 123)