Oliver Typewriter Co. v. Vance

Decision Date06 June 1911
Docket NumberNo. 7,140.,7,140.
Citation48 Ind.App. 21,95 N.E. 327
CourtIndiana Appellate Court


Appeal from Circuit Court, Fayette County; George L. Gray, Judge.

Action by Charles F. Vance against the Oliver Typewriter Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Neff & Johnston and Theop. J. Moll, for appellant. Chas. F. Vance, pro se.


Appellee recovered judgment against appellant for $70, from which this appeal is taken.

The errors assigned are (1) that the amended complaint does not state facts sufficient to constitute a cause of action; and (2) the overruling of appellant's motion for a new trial. The new trial was asked on the ground that the verdict of the jury is not sustained by sufficient evidence and is contrary to law; also, that the damages are excessive. The amended complaint averred, in substance, that appellee was employed by appellant at its special instance and request as its representative and salesman, and was continued in said employment for one month; that appellant agreed to pay him for his services the sum of $50 per month and expenses amounting in all to $75; that no part thereof has been paid, and there is due appellee the sum of $75. Prayer for $100. Immediately following the body of the complaint is the heading, Bill of Particulars,” showing an account of $50 for salary and $45 for meals, and two other items of $1 each, aggregating $97.

[1] Appellant contends that the amended complaint is identical with the original, and that, as a demurrer was presented and overruled to the original complaint, he should have the benefit of that demurrer here. But the filing of the amended complaint took the original complaint and all rulings thereon out of the record, and the amended complaint is questioned for the first time by the assignment of errors. Tague v. Owens et al., 11 Ind. App. 200, 38 N. E. 541;Efroymson et al. v. Smith, 29 Ind. App. 451, 63 N. E. 328.

[2] The principal objection urged to the amended complaint is that the bill of particulars is not referred to in the complaint, or in any way made a part thereof, though it immediately follows the body of the complaint. The pleading is not to be commended, but when the sufficiency of the complaint is questioned after verdict by motion in arrest of judgment, or by assignment of error, as in this case, all intendments are in favor of the pleading, and, if there is not a total failure to state some essential element of the right of recovery and the complaint state facts sufficient to bar another suit for the same cause of action, the verdict cures all other defects, and the complaint will be held sufficient to sustain the judgment. Peoria, etc., R. Co. v. Attica, etc., R. Co., 154 Ind. 218, 221, 56 N. E. 210...

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