McGregor v. Hubbs
| Decision Date | 18 October 1890 |
| Docket Number | 14,518 |
| Parties | McGregor v. Hubbs et al |
| Court | Indiana Supreme Court |
From the Perry Circuit Court.
Judgment affirmed.
W. A Land, for appellant.
W Henning, for appellees.
This action originated before a justice of the peace. The complaint filed with the justice was entitled as follows:
"Amaziah P. Hubbs, Charles Hubbs, vs. Nicholas Burst, John A. McGregor, late partners, under the name of McGregor & Burst."
Before Wm. Heck, J. P. in and for Troy township, Perry county.
This title is followed by a complaint in the usual form of a common count for goods sold and delivered, with which is filed the following bill of particulars:
"John A. McGregor & Nicholas Burst,
Dr:
To A. P. Hubbs & Charles Hubbs, from Nov.
The sufficiency of the complaint is called in question for the first time in this court by an assignment of error.
It is settled law in this State that an assignment of error that the complaint does not state facts sufficient to constitute a cause of action, is not available for the reversal of the judgment, unless some fact essential to the existence of the cause has been wholly omitted from the complaint. Laverty v. State, ex rel., 109 Ind. 217, 9 N.E. 774.
The objection urged against this complaint is that there is no allegation found in the body of the complaint to the effect that the appellant McGregor and Nicholas Burst were partners at the date of the sale and delivery of the goods, for the value of which this suit is prosecuted.
This objection can not prevail. Had there been no other complaint filed than the bill of particulars above set out, it would have been sufficient before a justice of the peace.
The only remaining question presented for our consideration relates to the sufficiency of the evidence to support the finding and judgment of the circuit court.
The evidence on behalf of the appellees tends to prove that the appellant and Nicholas Burst were partners in the business of handling staves in Perry county, and that in such business they owned and used some teams; that appellees sold them the feed, charged in the complaint, to be used in feeding such teams. The evidence on the part of the appellant tended to show that the firm of McGregor & Burst was dissolved before the sale and delivery of the goods in controversy, but upon this...
To continue reading
Request your trial