
    Langsdale et al. v. Girton, Ex’r.
    
      Executor. — Demurrer.—The right of a plaintiff to sue as an executor cannot be questioned upon demurrer to the complaint.
    
      Pleading. — Fraudulent Representations. — When it is intended to found a pleading upon fraud perpetrated by means of false representations made by a vendor to his vendee concerning the thing sold, the pleading must allege that the representations were fraudulently made.
    Same.— Vendor and Purchaser. — Deficiency in Land Sold'. — In an action on a promissory note, an answer alleging that it was given in part payment for a certain number of acres of land, and that, instead of there being that number, there were lacking a certain number of acres, of a certain value, greater than the amount of the note, and that, therefore, the consideration of the note had failed, was held' bad on demurrer.
    From the Shelby Circuit Court.
    
      H. Whitcomb and C. & G. M. .Wright, for appellants.
    
      O. J. Glessner, for appellee.
   Downey, J.

Action by the appellee, as executor of the will of Jacob Girton, deceased, against the appellants, Joshua Langsdale and John Hughes, on a promissory note for twelve hundred dollars, executed by the appellants to said deceased.. There was a demurrer to the complaint, which was overruled by the court.

The defendants answered in two paragraphs, to both of which demurrers were filed by the plaintiff, and sustained by the court. The defendants not answering further, there was judgment for the plaintiff.

The paragraphs of the answer are as follows:

“ 1. The defendants, for answer to the plaintiff’s complaint, say that the note described in the complaint was executed to Jacob Girton, the plaintiff’s testator, for a certain mill and appurtenances, and for no other consideration whatever; that the entire sum agreed to be paid for such property was four thousand two hundred dollars, and that the same has been paid, except the note sued on; that, to induce the defendants to purchase said property, the plaintiff’s testator did represent to these defendants that the machinery of said mill was in good working condition, that the same was in such condition as to properly manufacture good merchantable flour; that the said Jacob Girton did also represent that the timbers of said saw-mill, being part of the property purchased, and for which the note sued on was given, were sound; whereas, in truth and in fact, said timbers, being those hidden and not exposed to view, were rotten and unsound, which rottenness and unsoundness the defendants were not able to discover. And the defendants further show that said mill and appurtenances were purchased, as the plaintiff' well knew, for the purpose of a flouring mill and saw-mill, and said Jacob Girton represented that they were reasonably fit for said purpose, when, in truth and in fact, they were not reasonably fit for such purpose. The defendants show that they relied upon the representations aforesaid, and, upon the faith thereof, executed said note. The defendants show that, because of the defects aforesaid, because of the false and fraudulent representations of said plaintiff, they have been damaged in the sum of three thousand dollar's, and offer to set off' against said note the amount thereof, and for the residue thereof demand judgment.
2. For further answer, defendants say that the note sued on was given for certain mill property and forty-two acres of land, and the note was given in part payment for forty-two acres of land; that xvhereas, instead of there being forty-two acres, there are but thirty, and the twelve acres lacking xvere xvell and reasonably xvorth fifteen hundred dollars; and the defendants therefore aver that the consideration of the said note has xxdiolly failed.”

The errors alleged are the oxrex’r.uling of the demurrer to the complaint, and sustaining the demurrers to the paragraphs of the ansxver.

The objections made to the complaixxt are:

1. That it is not alleged that Jacob Girton, the payee of the note, is dead.

2’. It is not alleged that the plaintiff probated the xvill of the deceased, and qualified as executor thereof.

3. It is not averred xvhere Jacob Girton died, whether in the State of Indiana or out of it.

We think these objections .are ansxvered by the cases of Nolte v. Libbert, 34 Ind. 163, and Kelley v. Love, 35 Ind. 106. We hold that the complaint is sufficient.

We think the first paragraph of the ansxver is insufficient. It pleads the xnatter which it contaixxs as a set-off, xvhich it clearly is not. The xnatter, if good, as a defexxcc, should have been pleaded as a counter-claim or failure of consideration. But xvithout decidixxg the question on this ground, xve think the allegations of the paragraph are not such as make a defence on the ground of fraud.

It is xxot alleged that the representatioixs xvere fraudulently made by the deceased. The pax’agx’aph, toxvax’ds the close, says: “'The defendaxxts shoxv that, because of the defects aforesaid, because of the false and fraudulent representatioixs of the said plaintiff, they have been damaged,” etc. This is not deemed by the court a sufficient allegation that the representations set forth, conceding them to be otherwise sufficient, xvere fraudulently made. The paragraph is not in the usual form of pleadings alleging fraud. . It is customary to chax’ge that the representations were falsely and fraudulently made.

The second paragraph of the ansxver is unquestionably bad. It does not allege false representations or a warranty as to the quantity of the land, nor does it show that the land was sold by the acre.

In Cravens v. Kiser, 4 Ind. 512, it was said: “The general rule is, that where land is sold by metes and bounds, and estimated to contain a specific quantity, or for Añore or less/ and a gross sum is paid for the entire tract, the vendee will not be entitled to an abatement in price, should the number of acres fall short of the estimated quantity. But this rule is not applicable where there is any fraud or concealment on the part of the vendor. It is true, the deficit in quantity might be so great as to authorize the inference that the seller acted in bad faith; still such abatement must proceed on the ground of his fraudulent conduct.”

The judgment is affirmed, with costs.  