Peden v. Mail
| Decision Date | 08 March 1889 |
| Docket Number | 13,431 |
| Citation | 20 N.E. 493,118 Ind. 556 |
| Parties | Peden v. Mail |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled May 7, 1889.
From the Owen Circuit Court.
Judgment affirmed.
G. W Grubbs, D. E. Beem and W. Hickam, for appellant.
J. C Robinson, I. H. Fowler, S. O. Pickens and W. A. Pickens, for appellee.
The first paragraph of the appellee's complaint is a common count for work and labor performed at the request of the appellant. The second counts upon a special contract, and thus pleads the contract: That it was agreed that the plaintiff should reside upon the defendant's farm during the continuance of the partnership between them; that he should put into the partnership business stock and domestic animals owned by him, and such money as he desired to invest; that he should receive interest on the money invested by him so long as it was used in the business; that the defendant was to put into the business such cattle as he saw fit, and to furnish the plaintiff all the money required to successfully carry on the business, on which money he was to receive interest; that the plaintiff should keep the farm in ordinary repair, and that the defendant should make all the necessary permanent improvements; that the partnership should continue from year to year, beginning on the first of March, 1882; that upon the dissolution of the partnership, the profits of the business should be equally divided, and the losses, if any, should be borne in equal proportions. This paragraph of the complaint further alleges that the plaintiff fully performed his part of the contract. It alleges, also, that the defendant failed to perform his part of the contract, in these particulars: He failed to build necessary fences; he sold part of the farm; he took possession of the property of the partnership on the 6th of October, 1884, converted it to his own use and refuses to account for it. It further alleges that the defendant is indebted to the plaintiff, by reason of his breach of the contract and appropriation of the partnership property, in the sum of two thousand dollars. The first paragraph of appellant's answer is the general denial; the second is a plea of payment; the third and fourth both plead a set-off; the fifth counts upon a written contract, and avers that it constituted the only contract between the parties. The fifth paragraph also alleges that, on the 19th day of January, 1883, the plaintiff and defendant had a full and final settlement of all their partnership and individual transactions; that by the settlement and accounting it was ascertained and determined that the defendant was indebted to the plaintiff in the sum of five hundred and ninety-eight dollars, and that it was on the basis of this accounting and settlement that the written contract was executed; that, on the 19th day of January, 1884, they had a full and final accounting, wherein it was ascertained and agreed that the stock on hand belonged to the defendant, and was of the value of two thousand one hundred and ninety-eight dollars; that the plaintiff cultivated the farm during the year 1884; that the defendant has received from the sale of stock two thousand one hundred and forty-eight dollars, and that the plaintiff sold stock to the value of four hundred and thirty-four dollars, and appropriated the proceeds to his own use; that the partnership was dissolved by mutual consent on the 10th day of October, 1884, and that the plaintiff is indebted to the defendant in the sum of four hundred dollars. The third paragraph of the reply is addressed to the fourth and fifth paragraphs of the answer, and avers that the defendant is indebted to him in the sum of five thousand dollars, which is due and unpaid, and that a bill of particulars is filed. The fourth paragraph of the reply is directed to the third and fourth paragraphs of the answer, and alleges that there was a mistake in the accounting, and states the nature and particulars of the mistake. The fifth paragraph is addressed to particular items of the appellant's set-off.
A set-off may be pleaded to a set-off. If the third paragraph of the reply does sufficiently plead a set-off, it is good. It does sufficiently plead a set-off unless the absence of a bill of particulars makes...
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