Salem Gravel Road Co. v. Pennington

62 Ind. 175

• Court: Indiana Supreme Court
• Decided: May 15, 1878
• Status: Published

Opinion

Perkins, J.

The appellee sued the appellant, to recover a sum of money.

The complaint contained two paragraphs. The first was upon an account stated, and so was the second.

Demurrer to the complaint for want of facts overruled, and exceptions entered.

Answer, in four paragraphs:

1. General denial;

2. Payment;

3. Payment in named specific articles;

4. Statute of limitations.

Reply to the 2d, 8d and 4th paragraphs in general denial.

Trial by the court, finding for the plaintiff (appellee), and judgment, over a motion for a new trial, on the finding.

Appeal to this court.

Errors assigned:

1. The overruling of the demurrers to the several para graphs of complaint;

2. The overruling of the motion for a new trial.

The grounds of the demurrers to the complaint, as stated by counsel in their brief, are,

1. Absence of a bill of particulars ;

2. Absence of averments showing that .the gravel road company sued was a legally organized corporation.

This suit was against the corporation on an account stated, for work and labor done for the corporation, not upon an open account. In such suit we do not think it was necessary for the plaintiff to file a bill of particulars with his complaint. See sec. 78, 2 R. S. 1876, p. 73. Nor do we think in such a suit it was necessary for the plaintiff' to aver that the defendant was a legally organized corporation.

The grounds of the motion tor a new trial were

1. The refusal of the court to permit the declarations óf a deceased person to be given in evidence ;

2. Finding of the court not sustained by the evidence.

The declarations of the deceased person were clearly hearsay, and inadmissible. Doe v. Cunningham, 6 Blackf. 430. They were not shown to be a part of the res gestae. Dukes v. The State, 11 Ind. 557. They were not made by the person as a witness on a former trial. See The Indianapolis, etc., R. R. Co. v. Stout, 53 Ind. 143.

The evidence tended to support the finding.

The judgment is affirmed, with costs.