Brickey v. Irwin
| Decision Date | 06 February 1890 |
| Docket Number | 13,282 |
| Parties | Brickey v. Irwin |
| Court | Indiana Supreme Court |
From the Tippecanoe Circuit Court.
Judgment reversed.
J McCabe and E. F. McCabe, for appellant.
J. F McHugh, for appellee.
The appellee sought and recovered a judgment against the appellant for professional services as a physician and for medicines furnished.
The second paragraph of the complaint alleges that the plaintiff is, and for more than five years has been, a physician engaged in practice; that he was so engaged on the 15th day of November, 1883; that, on that day, the defendant was ill and employed the plaintiff as her physician to attend her and furnish her medicine; that she then and thereafter promised to pay him what his services and medicines would be reasonably worth; that in pursuance of such employment the plaintiff attended her as her physician from the 15th day of November, 1883, to the 26th day of January, 1884, and that the services so rendered, and medicines furnished, were of the value and reasonably worth three hundred dollars." There is no allegation that the defendant is indebted to the plaintiff, nor is there any allegation that the sum she promised to pay is due and unpaid. The contention of appellant's counsel that the demurrer to this paragraph of the complaint should have been sustained must prevail. It appears from the facts pleaded that there was a valid promise, but it does not appear that there was any breach of this promise. Without a breach there could be no cause of action. It is a familiar doctrine that the cause of action must be complete when the action is commenced, and that this must appear in the complaint. In the paragraph under examination this does not appear, for no breach is averred. The decisions fully support our conclusion. Wheeler, etc., Co. v. Worrall, 80 Ind. 297; Higert v. Trustees, etc., 53 Ind. 326; Downey v. Whittenberger, 60 Ind. 188; Kent v. Cantrall, 44 Ind. 452.
We are referred by appellee's counsel to the case of Jaqua v. Cordesman, etc., Co., 106 Ind. 141, 5 N.E. 907, but that case is not in point, for there the complaint alleged that the defendant was indebted to the plaintiff and here there is no such allegation. Here there is a promise pleaded, but no breach averred, either directly or indirectly.
There is no force in the argument that as the complaint fails to allege that the medicines were furnished it is...
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