Wagoner v. Wilson
| Decision Date | 05 November 1886 |
| Docket Number | 12,395 |
| Citation | 8 N.E. 925,108 Ind. 210 |
| Parties | Wagoner v. Wilson et al |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
The judgment is affirmed, with costs.
E. K Adams and L. J. Hackney, for appellant.
E. P Ferris, W. W. Spencer and J. S. Ferris, for appellees.
This was a suit by Wilson against Wagoner and Buell. The complaint is in three paragraphs.
The first paragraph is a common count to recover fifteen hundred dollars "for money had and received of the plaintiff, on the -- day of December, 1879."
The second paragraph is the same in substance as the first except that it avers that the money sought to be recovered was loaned and advanced to the defendants as partners, by the plaintiff in the months of December, 1879, and January, 1880.
The third paragraph avers that the defendants were indebted to the plaintiff in the sum of three hundred dollars for hogs sold and delivered by the plaintiff to the defendants in the months of November and December, 1879, and January, 1880, and that the hogs were purchased by plaintiff of one Alexander Laddy at a price mentioned.
A separate demurrer to each paragraph of the complaint was overruled. The first assignment here is that the court erred in overruling the demurrer to the complaint.
In support of this assignment it is argued that each paragraph of the complaint is an action upon an account, and that with each there should have been set out a bill of particulars containing the items and dates of the account sued on. It is said further that the second paragraph is defective in not averring that the indebtedness sued for was due and unpaid. In respect to this last objection it may be said, the paragraph seeks a recovery of money advanced to and for the use of the defendants in their business. Money so advanced, unless credit is stipulated for, becomes due presently. From the facts stated in the complaint, the law implied that the money sued for was due.
The paragraph contains the averment, following the statement that plaintiff advanced and loaned fifteen hundred dollars to and for the use of defendants, that the defendants "have refused to pay the plaintiff though often requested so to do." This, though not a direct and explicit allegation that the money advanced remained unpaid, made it reasonably certain by inference that the sum advanced was due and unpaid at the time the complaint was filed. Higert v. Trustees, etc., 53 Ind. 326; Catterlin v. Armstrong, 101 Ind. 258; Hartlep v. Cole, 94 Ind. 513.
In respect to the objection that no bill of particulars accompanies the complaint, it is sufficient to say that the first and second paragraphs are for the recovery of a specific sum of money advanced and loaned to, and had and received by, the defendants from the plaintiff, within a time designated in the complaint.
In an action for the recovery of money, where the complaint alleges that money was advanced to, and was had and received by, the defendants from the plaintiff, at or about a given time, no further bill of particulars is necessary, unless required by a motion to make the complaint more certain. In such a case the action is not, strictly speaking, on an account. Sharp v. Radebaugh, 70 Ind. 547; State, ex rel., v. Sims, 76 Ind. 328; McFadden v. Wilson, 96 Ind. 253.
The third paragraph counts upon an indebtedness of three hundred dollars for hogs sold by the plaintiff to the defendants during certain stated months. The transaction is further identified by an unnecessary statement in the body of the complaint, to the effect that the hogs sold were thirty head purchased by plaintiff from Alexander Laddy, giving their weight and the price per hundred. Where an indebtedness sued for is not evidenced by a written instrument, and is so particularized or described in the body of the complaint as to indicate with certainty the items and dates of the account upon which a recovery is sought, an additional bill of particulars would serve no useful purpose. There was no error in overruling the demurrer to the complaint.
After the demurrer to the complaint was overruled, issues were formed by an answer in denial. Pleas of payment and of settlement and satisfaction of each and every item of the indebtedness sued for, before the bringing of the suit, were also filed. A trial was had by a jury, with the result that upon the verdict returned, a judgment was rendered against Wagoner for $ 260, and in favor of his co-defendant Buell. Wagoner appealed, and in addition to the assignment already disposed of, he complains by proper assignment, that the court erred in overruling his motion for a new trial.
Under this assignment the rulings of the court in excluding certain evidence offered by the appellant, and in giving, at the appellant's request, certain instructions, are questioned.
Whether or not any question is presented for consideration by this assignment,--no attempt having been made to reserve such questions otherwise,--depends upon whether the bill of exceptions purporting to contain the evidence is in the record.
It does not appear from any certificate of the clerk, or from any recital in the record, that the long-hand manuscript of the short-hand report of the evidence was ever filed with the clerk, or in the court below, nor is the manuscript, as such, in any manner covered by the certificate of the clerk to the transcript before us. Looking at the transcript and the certificate of the clerk attached, it would be inferred that the evidence, both oral and written, was all embodied in one bill of exceptions, duly signed by the judge, and afterwards filed within the time allowed and literally copied into the record by the clerk. If nothing further appeared, there would arise no doubt but that the evidence was properly in the record, within the ruling in Longworth v. Higham, 89 Ind. 352; Williams v. Pendleton, etc., T. P. Co., 76 Ind. 87.
The appellees have, however, upon proper application therefor, obtained a writ of certiorari, requiring the clerk of the Shelby Circuit Court to certify to this court a true copy of any and all bills of exception filed by the appellant in the court below.
In answer to this writ, the clerk has certified a "true and complete copy of the only bill of exceptions filed by Robert Wagoner in said cause."
The bill of exceptions thus certified must control. Premising that the record shows that a short-hand reporter for the Shelby Circuit Court had been duly appointed, and that the bill of exceptions, last...
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