Reister v. Bruning

• Decision Date: 10 May 1911
• Docket Number: No. 7,155.,7,155.
• Citation: 94 N.E. 1019,47 Ind.App. 570
• Parties: REISTER v. BRUNING.
• Court: Indiana Appellate Court

47 Ind.App. 570

94 N.E. 1019

REISTER

v.BRUNING.

No. 7,155.

Appellate Court of Indiana, Division No. 2.

May 10, 1911.

Appeal from Superior Court, Vanderburg County; A. Gilchrist, Judge.

Action by Louisa E. Bruning against William Reister. From a judgment for plaintiff, defendant appeals. Affirmed.

Harry C. Dodson and Wahlton M. Wheeler, for appellant. Jas. T. Walker, E. C. Henning, and Henry B. Walker, for appellee.

LAIRY, P. J.

An action for money had and received, brought by appellant against the appellee. The issues formed were tried by a jury, and a verdict returned in favor of appellee, upon which the court rendered a judgment in his favor.

The first error assigned is that the complaint does not state facts sufficient to constitute a cause of action. The complaint, omitting the formal parts, is as follows: “The plaintiff, Louisa E. Bruning, complains of the defendant, William Reister, and for cause of action says that said defendant is indebted to said plaintiff in the sum of three hundred thirty-two and 50/00 ($332.50) dollars, for money had and received by the defendant for the use and benefit of the plaintiff, which same is now due and unpaid. Wherefore said plaintiff demands judgment against said defendant in the sum of three hundred thirty-two and 50/00 ($332.50) dollars, and for all other proper relief.”

[1] The only objection to this complaint pointed out by appellant is that it does not aver that appellee made a demand for the money before bringing the action. It is well settled that, in an action for money had and received for the use and benefit of another, no demand need be alleged. The averments of the complaint in this case do not show any relation of trust, bailment, or agency between the parties, or any other relation that would make a demand necessary. The complaint was good as a common count for money had and received. Spears v. Ward, 48 Ind. 541;Ferguson v. Dunn, Adm'r, 28 Ind. 58;Field v. Brown, 146 Ind. 293, 45 N. E. 464;Warden v. Nolan, 10 Ind. App. 334, 37 N. E. 821.

It is next insisted by the appellant that the trial court should have sustained his motion in arrest of judgment, for the reason that the complaint is insufficient. What we have already said as to the sufficiency of the complaint disposes of this question.

[2] The only other error assigned is that the court erred in overruling the appellant's motion for a new trial. Several causes were assigned by the motion, but only one is urged upon the attention of the court. It is insisted by counsel for appellant that the evidence introduced at the trial fails to make out a case within the issues made by the ...