Oliver v. Gorham , 85 Ind. 598 ( 1882 )

Niblack, J.

Action by Emma Gorham and her husband, ."Lewis Gorham, against Robert J. Oliver, upon an account. “The complaint was in two paragraphs, but as the second paragraph was withdrawn before the cause was given to the jury, mo question is presented upon it in this court.

The first paragraph averred that the plaintiffs were married to each other; “ that the said Robert J. Oliver became indebted to the said Emma Gorham while she was yet Emma Evans, for work and labor done for him, for care and attention bestowed upon his minor child Mattie, and upon his wife, Catharine ■Oliver, during their last sickness, and for which the defendant agreed to pay a reasonable compensation, for money loaned, paid ■out and expended for him and his minor child Mattie, all at Lis special instance and request, and as appears more fully by a Till of particulars filed herewith and made a part of this complaint, marked ‘ Exhibit A’; that said indebtedness is now >due and unpaid. Wherefore the plaintiffs ask judgment for •'$336, the amount of said claim, and for all other proper relief.”

A bill of particulars, amounting to $336 in the aggregate, 'was filed with and accompanied this paragraph. A demurrer 'to this first paragraph being first overruled, the action as to :the husband, Lewis Gorham, was dismissed, and afterwards ■ continued in the name of the wife, Emma Gorham, alone. Issues being joined, a jury returned a verdict for the plaintiff, assessing her damages at the sum of $100, and judgment *was rendered accordingly.

The first complaint made here of the proceedings below is that the court erred in overruling the demurrer to the first paragraph of the complaint set out as above.

The objection urged to the paragraph is that the contract under which the alleged services were rendered was not set out and described with sufficient certainty, and that it was defective in not averring by whom the work and labor was performed, and the money was loaned, paid out and expended. The appellee might very properly have been required to make the paragraph more certain and specific in some respects, but the bill of particulars supplied some of the omissions complained of, and, considering the paragraph in the nature of a ■common count in assumpsit, aided as it was by the bill of particulars filed with it, we think it was sufficient upon demurrer. 2 Chitty Pleading, 33.

Other questions are suggested by counsel, but they are neither presented nor argued in such a way as to requii’e us to consider them, only a preliminary or supersedeas brief having been filed on behalf of the appellant.

The judgment is affirmed, with costs and ten per cent, damages.