
    Bingham v. The Nypano Rd. Co. et al.
    
      Pleading — (Error in sustaining demurrer waived by filing amended pleading — Reformation of contract and damages for breach pleaded, how — Reformation of contract a chancery proceeding — Appeal to Court of Appeals — Unaffected by submission of cause for breach of contract — Procedure upon trial of causes of action.
    
    1. Where the court sustains a demurrer to a pleading and thereupon the pleader files an amended pleading tendering the same issues, any alleged error in the ruling upon such demurrer is thereby waived. Under such circumstances the amended pleading supersedes the original pleading.
    2. It is permissible practice to state separate causes of action in a single petition, one of which may be for reformation of contract, and the other for damages predicated upon the breach of the contract as reformed. The first is a chancery proceeding, which should ibe heard and determined by the court in advance of the trial of the second cause.
    3. A judgment upon such reformation issue is appealable and the unsuccessful party is entitled to a trial de novo in the Court of Appeals. Such right to a trial upon appeal is not defeated by an immediate submission of the cause for damages predicated upon alleged breach of the contract as reformed.
    (No. 18753
    Decided March 17, 1925.)
    Error to the Court of Appeals of Marion county.
    In the trial court Bingham sought to recover damages from the railroad company on account of injuries suffered by him while an employe of the railroad company. The original petition contained a single cause of action, which alleges the employment, the injury, and that soon after the injury a written contract was entered into between Bingham and the railroad company, whereby it was agreed that in consideration of the sum of $8;000 the railroad company should be released and discharged from all claims and demands against the company for said injuries. The written agreement contained no- other promises, but it is alleged that promises were made that Bingham should have “a life job on the railroad lines of the defendants and also passes to all points on its railroad,” that thereafter employment was given to him as a watchman, for a period of time; but that later he was discharged and the railroad company refused thereafter to employ him, although he was willing to continue in such employment. It was further alleged that he believed that the written contract contained a promise of employment and that otherwise he would not have signed the agreement. He therefore prayed reformation of the agreement and damages in the sum of $25,000 for the failure to provide employment.
    A demurrer to the petition was sustained, and thereupon an amended petition was filed, which did not differ from the first except that it contained two causes of action, the first of which pleaded a cause for reformation of the contract, and the second a cause for damages based upon the contract as reformed. The answer admitted the execution of the written contract and set forth a copy of the same, denying all allegations of the amended petition which were pleaded as grounds of reformation, and claiming that the contract was a valid release from further claims for damages. The issues were completed by a reply.
    The parties wezit to trial, and the. trial court sitting as a court of equity heard the first cause of action and reformed the contract and ordered the contract to include the conditions as to a life job and passes. On the next day thereafter a jury was empaneled and the second cause of action, upon the contract as reformed, was tried, and a verdict rendered for plaintiff in the sum of $12,000. Thereupon the judgment upon the first cause of action was appealed to the Court of Appeals, and the judgment upon the second cause of action, upon the contract as reformed, was carried to the Court of Appeals on error. The Court of Appeals first heard the appeal proceeding and rendered judgment in favor of the railroad company. No motion had been filed to dismiss the appeal and the appeal was therefore heard without objection. Thereupon the judgment in the appellate proceeding was challenged in the Supreme Court by a motion to certify the record, but the motion was overruled and the judgment of the Court of Appeals upon the first cause of action thereby became final.
    The error proceeding which was still pending in the Court of Appeals upon the second cause of action was thereupon heard and decided, and the Court of Appeals’ entry in the error proceeding contains the following:
    “Anri the cause in which the judgment in controversy herein was rendered having been appealed from the court of common pleas to this court, and the issue of reformation therein having been heretofore submitted to this court, and having been determined and decided against the plaintiff, and reformation of contract having been refused by this court, and the averment of the amended petition confining plaintiff’s cause of action for damages, solely to the written contract, as so sought to be reformed, and the petition having by this court been dismissed as to the said issue of reformation, the court finds and adjudges that there is error to the prejudice of plaintiff in error in the judgment assessing damages, in the overruling of the motion for new trial on the ground that the verdict is not sustained by any evidence. It is therefore considered and adjudged that said judgment be and it hereby is reversed and held for naught, and that plaintiff in error be restored to all things lost by reason thereof, and the plaintiff in error recover from defendant in error their costs herein. And inasmuch as the amended petition restricts plaintiff’s right to recover damages only in the event the written contract be reformed, it is further considered and adjudged that the amended petition be now dismissed, and that judgment thereon be entered in favor of defendants and against plaintiff.”
    A motion was filed in this court to have that judgment certified to this court for review, and that motion was allowed.
    
      Messrs. Justice, Young & Mouser, for plaintiff in error.
    
      Messrs. Cook, McGowan, Foote, Bushnell & Burgess, and Messrs. Crissinger, Guthery & Strelitz, for defendants in error.
   Marshall, C. J.

The first claim of error is that the trial court erred in sustaining the demurrer to the original petition. This proposition can be easily disposed of. When that demurrer was sustained the plaintiff did not elect not to further plead and did not permit final judgment to be entered on that demurrer and prosecute error therefrom, but on the other hand elected to file an amended petition. Whether or not the original petition was obnoxious to a demurrer is not open to inquiry at this time. The amended petition superseded the original petition and all further pleadings and proceedings in the case were addressed to the amended petition.

The amended petition was not tested by demurrer, and for the purposes of this case it may be conceded that, if the contract had been reformed in the Court of Appeals on appeal, as it was in the trial court upon the original trial of that issue, the verdict and judgment in the trial court would be sustained throughout. The plaintiff pleaded facts which if proven entitled him to a reformation. The court proceeded to determine that question on the chancery side of the court in advance of- a determination of the second cause of action, which involved a case at law.

No jury was demanded upon the trial of the first cause of action and upon determination in plaintiff’s favor and a rendition of a judgment of reformation the railroad company was entitled to appeal from that judgment, and upon an appeal being perfected no motion was made in the Court of Appeals to dismiss the appeal and the Court of Appeals thereupon heard the case as an appeal case and decided that issue in favor of tho railroad company. Upon error being prosecuted from that branch of the case to the Supreme Court, the overruling of the motion to certify left the judgment in chancery a finality. It is common and familiar practice to combine an action for reformation with an action for damages upon a contract as reformed, just as the plaintiff proceeded in this case. On the other hand, it would have been permissible to bring an action for reformation and have such action fully determined before proceeding to recover damages upon the contract as reformed. If the plaintiff had proceeded in a separate suit for reformation it would hardly be questioned that an appeal might have been taken, and that though a judgment for reformation were entered in the court of common pleas a contrary judgment could be rendered on appeal in the Court of Appeals. By perfecting an appeal the judgment of the court of common pleas is utterly vacated. The railroad company could not be deprived of ■its right to a trial de novo of the equitable issue by the mere expedient of combining both causes of action in a single petition.

After the Court of Appeals had rendered a contrary judgment on the subject of reformation, it only remained to determine whether there could be a recovery upon the contract without reformation, and the 'Court of Appeals proceeded to hear the error case to determine that question. An examination of the original contract of release discloses that $8,000 was paid by the railroad company to Bingham, and that in consideration of that payment Bingham released the company from all claims and demands. The contract contained no promise of a position or railroad passes, and by the denial of the reformation it becomes conclusive, so far as this case is concerned, that no such promise was made. Manifestly Bingham could not retain the $8,000 and ignore his promise to release the company from further claims for damages. By denying the reformation the record was stripped of all evidence relating to the alleged promise to provide employment and railroad passes. The contract thereby became binding between the parties according to its terms, uninfluenced and unvaried by parol testimony. The Court of Appeals apparently ignored all testimony relating to the alleged promise to provide employment and passes, and when such evidence was eliminated from the record nothing remained to sustain the verdict, and judgment. The Court of Appeals judgment must therefore be affirmed.

Judgment affirmed.

Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  