Elwood Natural Gas And Oil Co. v. Baker

• Decision Date: 21 November 1895
• Docket Number: 1,906
• Citation: 41 N.E. 1063,13 Ind.App. 576
• Parties: ELWOOD NATURAL GAS AND OIL CO. v. BAKER ET AL
• Court: Indiana Appellate Court

41 N.E. 1063

13 Ind.App. 576

ELWOOD NATURAL GAS AND OIL CO. v. BAKER ET AL

No. 1,906

Court of Appeals of Indiana

November 21, 1895

From the Madison Circuit Court.

Judgment affirmed.

E. B Goodykoonts and G. M. Ballard, for appellant.

D. L Bishop and D. W. Scanlan, for appellees.

OPINION

ROSS, J.

This action was brought by the appellees to recover a balance due them from appellant for drilling a gas well under the terms of a written contract. No copy of the contract was filed with the complaint, for the reason as alleged, that the appellant was in the possession thereof, and although requested, refused to give or permit appellee to take a copy thereof. Then follows a summary of the material parts of the contract as appellees remembered them. A demurrer for want of facts was filed to the complaint and overruled, thereupon the appellant filed an answer in two paragraphs, the first being a general denial, and the second setting forth the terms of the contract under which the work was done, and alleging noncompliance therewith on the part of the appellees. A copy of the contract was filed with this paragraph of the answer. To the second paragraph of the answer the appellees filed a reply of general denial. Upon the issues thus formed the cause was submitted to a jury for trial and a verdict returned in favor of the appellees, assessing their damages at one hundred and sixty-five dollars.

The contention of appellant, when attacking the sufficiency of the complaint, that appellees cannot allege that the contract provided for a well three inches in diameter and then recover, when in truth and fact, the contract was that the well should be eight inches in diameter can have no force at this time, as the facts alleged in the complaint are, that by the terms of the contract the well was to be three inches in diameter, and it nowhere appears in the complaint that it was to be otherwise or different. In determining the sufficiency of the facts alleged in the complaint to state a cause of action, we can look to nothing except the complaint itself. Other pleadings filed, or the evidence, neither strengthen nor weaken the facts alleged in a complaint, when the sufficiency of the facts alleged to state a cause of action is being considered.

So far as any objection has been pointed out we think the complaint sufficient.

Again it is urged that the court erred in overruling the motion for a new trial.

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