Jaqua v. Shewalter

36 N.E. 173, 10 Ind. App. 234, 1893 Ind. App. LEXIS 27

• Court: Indiana Court of Appeals
• Decided: December 21, 1893
• Docket: No. 1,069
• Status: Published

Opinions

Lotz, J.

The appellee brought this action, against the appellant.

His complaint is in these words, omitting the formal parts:

“The plaintiff complains of the defendants and says, that heretofore, to wit, on the-day of January, 1887, the plaintiff and the defendants John T. Hanlin and Clark H. Croninger were partners doing business in the name and style of Shewalter, Hanlin & Co., and, as such firm, they sold and delivered to said defendant Alonzo L. Jaqua certain goods, wares, and merchandise, of the value of four thousand dollars; a bill of particulars of which is filed herewith and made a part hereof; that said firm of Shewalter, Hanlin &Co. has been dissolved, and their partnership accounts settled between them; that by the terms of said settlement the account in favor of said firm became, and now is, the separate property of this plaintiff. And said Hanlin and Croninger are made parties defendant to answer as to their interest in said account. Wherefore plaintiff demands judgment against the defendant Jaqua for four thousand dollars and other proper relief.”

The bill of particulars filed with the complaint was entitled thus: “Alonzo L. Jaqua. To Shewalter, Hanlin & Co. Dr.” Then follows the items of the account with date of sale. Hanlin made default.

• The record is silent as to whether or not Croninger was served with process. Jaqua appeared and filed a demurrer to the complaint for want of facts. This demurrer was overruled and he excepted to the ruling of the court. Issues were joined and there was a trial by jury, and a verdict and judgment against the appellant Jaqua alone.

The overruling of the demurrer to the complaint is one of the errors assigned in this court.

Filed Dec. 21, 1893.

Appellant’s counsel contends that the complaint is insufficient to withstand the demurrer, because it is nowhere alleged therein that the indebtedness is due and unpaid. This contention is well founded. It has been repeatedly decided in this State that in an action for a money demand upon a contract, express or implied, the complaint must show, in some manner, that the debt, or some part thereof, is due and unpaid. Riley v. Walker, 6 Ind. App. 622; Johnson v. Tyler, 1 Ind. App. 387; Goodman v. Gordon, 87 Ind. 126; Pace v. Grove, 26 Ind. 26; Howorth v. Scarce, 29 Ind. 278; Seldonridge v. Connable, 32 Ind. 375; Green v. Louthain, 49 Ind. 139; Lawson v. Sherra, 21 Ind. 363; Michael v. Thomas, 27 Ind. 501.

There is no averment, either directly or indirectly, that the debt or claim for which the suit was brought, is due or unpaid, and none from which such facts can be inferred. We are not favored- by a brief from the appellee, and we are not informed upon what theory the complaint was held good in the court below. We presume the court’s attention was not called to any defect in the complaint, and that the demurrer was overruled pro forma. In view of the numerous adjudications upon this point, we feel constrained to hold the complaint insufficient.

Judgment reversed, at costs of appellee, with instructions to sustain the demurrer to the complaint.