Warden v. Nolan

• Citation: 37 N.E. 821,10 Ind.App. 334
• Decision Date: 07 June 1894
• Docket Number: 773
• Parties: WARDEN v. NOLAN
• Court: Court of Appeals of Indiana

37 N.E. 821

10 Ind.App. 334

WARDEN v. NOLAN

No. 773

Court of Appeals of Indiana

June 7, 1894

From the Clark Circuit Court.

Judgment affirmed.

L. A Douglass and J. B. Meriwether, for appellant.

OPINION

REINHARD, J.

The appellee sued the appellant by a complaint in two paragraphs. In the first paragraph it is averred that on March 1st, 1888 appellant was surety for the appellee on some notes, and in order to secure the appellant the appellee deeded him lots 9 and 10 in block 92, Jeffersonville, Indiana; that on October 5th, 1889, appellant sold the lots for $ 500; that appellee paid the notes when due, and appellant suffered no loss by his being a surety for the appellee; that appellant owed him $ 238.55, which was due and unpaid, and which he had demanded of appellant, but the latter had refused to pay, and he prayed judgment for the amount.

The second paragraph charges that appellant is indebted to the appellee in the sum of $ 200 for money paid by the appellee for the use and benefit of the appellant, and at the latter's request, which sum is now due and unpaid, and for which, together with interest thereon, he demands judgment.

Upon issues joined, the cause was tried by a jury, and a verdict was returned in favor of the appellee for $ 231.55, for which amount, over appellant's motion for a new trial, the court rendered judgment.

The first error assigned is that "the complaint does not state facts sufficient to constitute a cause of action, or either paragraph thereof."

An assignment that the complaint does not state facts sufficient to constitute a cause of action will not be upheld if any paragraph of such complaint is sufficient, and this is true even though the assignment is addressed separately to each paragraph. DeVay v. Dunlap, 7 Ind.App. 690, 35 N.E. 195. If, therefore, either of such paragraphs is sufficient, the assignment must fall.

Assuming, however, that this assignment is sufficient to test each paragraph of the complaint separately in this court, we are of opinion that the pleading is not so defective as to demand a reversal of the judgment. Where the defects in a complaint are such as may be supplied by the evidence, they will be held cured by the verdict and judgment, when the pleading is questioned for the first time by an assignment of error here, and in such case if the complaint contain enough substance to bar another action for the same thing, it will be sufficient to withstand such attack. Bronnenburg v. Rinker, 2 Ind.App. 391, 28 N.E. 568.

The first paragraph of the complaint might have been obnoxious to a demurrer, for the want of an averment of ownership of the lot by the appellee, but we think it meets the requirements of the law when tested by the rule above stated.

The second paragraph is not open to the objection urged, viz.: that no demand is averred. Such an averment is not required in a complaint for money had and received, or paid for the benefit of the defendant at his request, even if the pleading were tested by demurrer.

The only remaining assignment of error is the overruling of the motion for a new trial. Under the assignment in this motion that the evidence is insufficient to support the verdict, the appellant urges a variance between the complaint and the evidence. It is insisted that the complaint charges that appellant was a surety on the notes of the appellee, for which the lots had been deeded to him,...