The Salem Gravel Road Co. v. Pennington.

THE SALEM GRAVEL ROAD Co. v. PENNINGTON.

TURNPIKE.-Complaint Against Corporation.-Bill of Particulars.—In an action against a gravel road company, upon an account stated, for work and labor done for the defendant, it is not necessary to file a bill of particulars with the complaint, nor is it necessary to aver therein that the de fendant is a legally organized corporation.

EVIDENCE. Declarations.-Hearsay.-The declarations of a deceased third person, not made by him as a witness on a former trial, are not competent evidence on the trial of an action on an account stated.

From the Hendricks Circuit Court.

C. C. Nave and C. A. Nave, for appellant.
J. V. Hadley, for appellee.

PERKINS, J.-The appellee sued the appellant, to recover a sum of money.

The complaint contained two paragraphs. The first was upon an account stated, and so was the second.

Demurrer to the complaint for want of facts overruled, and exceptions entered.

Answer, in four paragraphs:

1. General denial;

2. Payment;

3. Payment in named specific articles;

Reply to the 2d, 3d and 4th paragraphs in general denial.

Trial by the court, finding for the plaintiff (appellee), and judgment, over a motion for a new trial, on the finding.

Appeal to this court.

Errors assigned:

1. The overruling of the demurrers to the several para graphs of complaint;

2. The overruling of the motion for a new trial.

The grounds of the demurrers to the complaint, as stated by counsel in their brief, are,

Smock v. Brush.

1. Absence of a bill of particulars;

2. Absence of averments showing that the gravel road company sued was a legally organized corporation. This suit was against the corporation on an account stated, for work and labor done for the corporation, not upon an open account. In such suit we do not think it was necessary for the plaintiff to file a bill of particulars with his complaint. See sec. 78, 2 R. S. 1876, p. 73. Nor do we think in such a suit it was necessary for the plaintiff to aver that the defendant was a legally organized corporation.

The grounds of the motion for a new trial were ·

1. The refusal of the court to permit the declarations of a deceased person to be given in evidence;

2. Finding of the court not sustained by the evidence. The declarations of the deceased person were clearly hearsay, and inadmissible. Doe v. Cunningham, 6 Blackf. 430. They were not shown to be a part of the res gesta. Dukes v. The State, 11 Ind. 557. They were not made by the person as a witness on a former trial. See The Indianapolis, etc., R. R. Co. v. Stout, 53 Ind. 143.

The evidence tended to support the finding.
The judgment is affirmed, with costs.

SMOCK V. BRUSH.

STATUTE OF FRAUDS.-Contract to Pay Debt of Another.-Parties.-In an action on account for goods sold and delivered, the evidence developed the facts, that the plaintiff had sold such goods merely as the agent of the owner, that such goods had been charged against the defendant in favor of the owner, that there was a verbal agreement between the plaintiff and his employer that the former should be responsible for all uncollectible accounts, and that such account had not been paid by the plaintiff.

Smock v. Brush.

Held, that the plaintiff is not, but that his principal is, the real party in interest, and that such agreement is void by the statute of frauds.

From the Marion Circuit Court.

H. C. Allen, for appellant.

J. C. Green and J. C. Pearson, for appellee.

NIBLACK, C. J.-This suit was commenced before a justice of the peace, by John T. Brush, against William C. Smock, upon an open account.

The plaintiff recovered a judgment before the justice, from which the defendant appealed to the circuit court.

There was a finding in the circuit court for the plaintiff, and, notwithstanding objections interposed by a motion for a new trial, judgment was rendered in accordance with the finding.

On the trial the plaintiff testified, in substance, as follows: "I am the plaintiff in this action. My business is gentlemen's furnishing goods. The account sued upon is correct, and there is due upon said account twenty dollars and sixty

cents.

"I sold the goods for Owen, Pixley & Co., who owned the goods sold and the store, at the time. I was not a member of the firm when the goods were sold, but was simply selling the goods for them. I have not bought the account sued upon, nor has it been assigned or transferred. to me. I was simply acting for said firm in selling their goods for them. The account is charged upon the books, viz.:

"William C. Smock, Dr.

"To Mdse,' etc.

"I kept no account personally, nor in my name, of the goods sold. I have no personal account with the defendant and have not had.

"I had an arrangement with the firm to sell the goods for cash, and if I sold on credit I was to be personally re

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The Indianapolis, Peru and Chicago R. W. Co. v. Negley.

sponsible, and stand good to the firm myself, if the accounts could not be collected. I am now a member of the firm.

"My arrangement with the firm was a verbal one. I did not keep any personal account between myself and the firm for these goods, nor charge myself with them in any way. I have paid the firm for other accounts which I could not collect, and I expect to pay this one, if it can not be collected. If I collect it I will turn the money over to the firm, and then it will be paid."

This was all the evidence given in the cause.

The motion for a new trial raised the question of the sufficiency of the evidence to sustain the finding of the

court.

We think the finding was not sustained by the evidence. The evidence showed the plaintiff not to be the real party in interest, and hence not entitled to sue in this action. 2 R. S. 1876, pp. 33, 34, secs. 3, 4. It showed the right of action to be in Owen, Pixley & Co., and not in him.

This case, in all its essential features, is a parallel one to that of Smock v. Brush, ante, p. 156; and, upon the authority of that case, this judgment must be reversed.

The judgment is reversed, at the costs of the appellee, and the cause remanded for further proceedings not inconsistent with this opinion.

THE INDIANAPOLIS, PERU AND CHICAGO R. W. Co. v. NEGLEY. SUPERIOR COURT.—Supreme Court.--Assignment of Error.—Practice.—Where no error is assigned in the superior court, in general term, on appea thereto from special term, no question is presented to the Supreme Court, on appeal from the judgment of the general term affirming that of the special term.

From the Marion Superior Court.

Pudney v. Burkhart.

D. Moss, for appellant.

R. E. Smith, for appellee

BIDDLE, J.-This case was tried at the special term, and a judgment rendered against the appellant.

An appeal was taken to the general term, wherein the judgment was affirmed. Appeal to this court. No error was assigned in the court below at the general term; there is, therefore, no question presented here. This practice is well settled.

The judgment is affirmed, at the costs of the appellant.

PUDNEY V. BURKHART.

EXEMPTION.-Execution.-Action Against Sheriff by Wife of Debtor.—Failure to Verify Complaint.-Demurrer.- Waiver.-Practice.-Mandate.-In an action by a married woman, against a sheriff holding an execution against the property of her husband, for a writ of mandate to compel the defendant to cause the husband's property to be appraised, in order that she might claim the lawful amount exempt from execution, the complaint, which was not verified, alleged that the defendant had in his possession, as sheriff, an execution against the husband's property, which he had not yet. levied; that he had in his hands a surplus of money realized from a sale by him of certain property belonging to the husband, in satisfaction of a prior execution, in favor of a third person against the husband; that, after such sale but before he had received such surplus, the plaintiff had, on behalf of her husband, who was absent from home, made out and verified a proper schedule of her husband's property, and presented the same to the defendant, selected a competent person as appraiser, notified the sheriff thereof, and demanded the proper appraisement and exemption; and that her husband was a resident freeholder of the State and county.

Held, on demurrer for insufficiency, that, by demurring, the defendant had waived the objection that the complaint was not verified.

Held, also, that, in such case, the proper practice is by a motion to reject the complaint for want of a proper verification.

Held, also, that, no levy having been made, mandate is the proper remedy in such case, and that the complaint is sufficient.