Hardy v. Weyer

• Decision Date: 09 October 1908
• Docket Number: No. 6,495.,6,495.
• Citation: 85 N.E. 731,42 Ind.App. 343
• Parties: HARDY v. WEYER.
• Court: Indiana Appellate Court

42 Ind.App. 343

85 N.E. 731

HARDY

v.WEYER.

No. 6,495.

Appellate Court of Indiana, Division No. 2.

Oct. 9, 1908.

Appeal from Superior Court, Vanderburgh County; Alex.Gilchrist, Judge.

Action by William D. Hardy, trustee in bankruptcy, against John W. Weyer.From a judgment for defendant on demurrer to the complaint, plaintiff appeals.Affirmed.

W. D. Hardy and F. H. Posey, for appellant.L. J. Herman, for appellee.

COMSTOCK, J.

Appellant, as trustee, sought to recover for the second installment of the purchase price of property sold to appellee by the bankrupt, Otto Georges.A separate demurrer for want of facts was sustained to each of the three paragraphs of the amended complaint.Appellant refusing to plead further, judgment was rendered against him for costs.

Appellant asks a retrial upon the alleged error of the court in holding each paragraph of said complaint insufficient.The three paragraphs of the complaint are substantially the same.The third concisely states the facts in issue, and it is unnecessary to further refer to the other two.Omitting the caption, it alleges, in substance: That on the 26th day of August, 1905, Otto Georges, on his petition, was duly adjudged a bankrupt, and plaintiff on the 27th day of October, 1905, duly qualified as trustee, and assumed the duties of said trust, and now prosecutes this action as said trustee.That on the 6th day of February, 1905, the said Otto Georges entered into a contract with the defendant by terms of which the said Georges sold and delivered to the defendant a one-half interest in the Black Diamond Cigar Company, and the said Georges and Weyer agreed to becomepartners and prosecute the business of the said Black Diamond Cigar Company.A copy of said contract, marked “Exhibit A,” is attached and made a part of the complaint, that according to the terms of said contract the defendant agreed to pay to the said Otto Georges for the said one-half interest of said business the sum of $2,000 in two installments, $1,000 cash, and if, at the expiration of one year from date thereof, the said John W. Weyer should be satisfied with and wish to continue as a partner in said business, then he should pay the second installment of $1,000, together with 5 per cent. interest from the date of said contract.That on said 6th day of February, 1905, the said defendant did pay to the said Georges the first installment of $1,000 and entered into said business with said Georges as a partner.That on the 25th day of August, 1905, the defendant filed his complaint in the Vanderburgh circuit court, asking that said partnership be dissolved and an account taken of all partnership dealings and assessments from the commencement thereof, and all moneys received and paid by said Weyer and said Georges, respectively, and that the property of the firm be sold and the...