Wulschner-Stewart Music Co. v. Helft

Indiana Court of Appeals

Wulschner-Stewart Music Co. v. Helft

90 N.E. 1033, 45 Ind. App. 428, 1910 Ind. App. LEXIS 203

CourtIndiana Court of Appeals

DecidedFebruary 25, 1910

DocketNo. 6,963

StatusPublished

This text of 90 N.E. 1033 (Wulschner-Stewart Music Co. v. Helft) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wulschner-Stewart Music Co. v. Helft, 90 N.E. 1033, 45 Ind. App. 428, 1910 Ind. App. LEXIS 203 (Ind. Ct. App. 1910).

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Opinion

Roby, J.

1. Appellee’s complaint is in one paragraph. Its averments are that defendant is a corporation; “that defendant is indebted to plaintiff for commission as a salesman for defendant in the sum of $500, which is now due and wholly unpaid; that defendant is indebted to plaintiff for wages and expense money advanced for and in behalf of said defendant, in the sum of $75, which is now due and wholly unpaid.” Upon motion the court [429]*429required him to furnish a bill of particulars, which was done. Such bill is in form as follows:

“Walter Helft,

v.

Wulschner-Stewart Music Go.

Vose piano sold to Peter Denkleman, July 11, 1905, Terre Haute, $5.”

The item set out is one of fifty-six. There is nothing in the complaint or bill of particulars showing that the commission specified was earned or the wages and the expense money advanced by plaintiff. The bill of particulars, reference to which may be made to cure the defect in the body of the pleading, is ineffective for that purpose. The general allegation of indebtedness is insufficient to inform defendant of the nature of the claim against it. Peden v. Mail (1889), 118 Ind. 556; Gise v. Cook (1899), 152 Ind. 75; Briekey v. Irwin (1890), 122 Ind. 51.

2. It is contended that the complaint is sufficient as a common count. The sufficiency of the common count as a complaint is established by tlie decisions, although logically not in accord with code provisions. Southern R. Co. v. Hazlewood (1909), post, 478. The absence of the averment that the work was done, or that the money was advanced by plaintiff, is as fatal at common law as under the statute. Stephen, Pleading, 378, 387.

3. The evidence is not in the record, and in its absence we are unable to say that the right result was reached.

The judgment is reversed and cause remanded, with instructions to sustain appellant’s demurrer to the complaint.

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Roby, J.

1. Appellee’s complaint is in one paragraph. Its averments are that defendant is a corporation; “that defendant is indebted to plaintiff for commission as a salesman for defendant in the sum of $500, which is now due and wholly unpaid; that defendant is indebted to plaintiff for wages and expense money advanced for and in behalf of said defendant, in the sum of $75, which is now due and wholly unpaid.” Upon motion the court [429]*429required him to furnish a bill of particulars, which was done. Such bill is in form as follows:

“Walter Helft,

v.

Wulschner-Stewart Music Go.

Vose piano sold to Peter Denkleman, July 11, 1905, Terre Haute, $5.”

The item set out is one of fifty-six. There is nothing in the complaint or bill of particulars showing that the commission specified was earned or the wages and the expense money advanced by plaintiff. The bill of particulars, reference to which may be made to cure the defect in the body of the pleading, is ineffective for that purpose. The general allegation of indebtedness is insufficient to inform defendant of the nature of the claim against it. Peden v. Mail (1889), 118 Ind. 556; Gise v. Cook (1899), 152 Ind. 75; Briekey v. Irwin (1890), 122 Ind. 51.

2. It is contended that the complaint is sufficient as a common count. The sufficiency of the common count as a complaint is established by tlie decisions, although logically not in accord with code provisions. Southern R. Co. v. Hazlewood (1909), post, 478. The absence of the averment that the work was done, or that the money was advanced by plaintiff, is as fatal at common law as under the statute. Stephen, Pleading, 378, 387.

3. The evidence is not in the record, and in its absence we are unable to say that the right result was reached.

The judgment is reversed and cause remanded, with instructions to sustain appellant’s demurrer to the complaint.

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Bluebook (online)

90 N.E. 1033, 45 Ind. App. 428, 1910 Ind. App. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wulschner-stewart-music-co-v-helft-indctapp-1910.

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