45 Ind. 156 | Ind. | 1873
This was an action by the appellee, to recover of the appellant for money had and received and for work and labor. The complaint was in two paragraphs. The first alleged, in substance, that in the year 1862, the plaintiff enlisted as a soldier in the army of the United States, and while in the army he sent at various times to the appellant the sum of two hundred and sixty-nine dollars, which ’was received by appellant, who upon demand had refused to pay the same or any part of it, but had converted the same to his own use.
The second paragraph was for work and labor done and performed by plaintiff for defendant.
There was issue, trial by jury, finding for appellee, new trial refused, and judgment.
The only error assigned is the sustaining of the demurrer to the third paragraph of the answer, which is as follows:
“ 3d. For further answer to said complaint, says that the plaintiff when but a small child, two years and a half old, was taken by the defendant into his family and from that time until long after he became of age and up until he was married, he lived with the defendant as one of his own family and was treated by him as one of his own family; and he says that the money claimed to have been furnished and paid to this defendant by plaintiff was sent to him during the time that he so lived in his family, and that during all that time the defendant was furnishing him with the necessaries of life and sending clothing and money to him while in the army; wherefore he says that the earnings of plaintiff belonged to him of*157 right, and therefore plaintiff ought not to recover, and demands judgment for costs.”
Counsel for appellant have discussed with marked ability several very interesting questions presented by the above paragraph of answer, but counsel for appellee has urged an objection that is fatal to the answer - and will compel us to affirm the judgment, and that is, that it assumes to answer the whole complaint, when it is only an answer to the first paragraph of the complaint. It assumes to answer the entire complaint, but does not answer or attempt to answer the second paragraph. The rule is well settled, that a plea in confession and avoidance, which is pleaded in bar of the entire cause of action, when it constitutes only a partial defence, is bad. Curran v. Curran, 40 Ind. 473. No .useful •purpose could be accomplished by passing upon thet other questions discussed.
The judgment is affirmed, with costs.
