Black v. Hersch

| Ind. | May 15, 1862

Hanna, J.

Suit by appellees, as partners, against appellant, as their attorney, for money collected and not paid over. Ho demand of the same before suit brought is alleged or proved. A demurrer to the. complaint was overruled and the ruling excepted to. The demurrer was afterwards withdrawn and a general denial filed. The Court instructed the jury that no demand before suit wTas necessary. On motion of the plaintiff, the interrogatory of the defendant, directed to Strans, inquiring whether he was a partner, or had any interest in said suit, was stricken out. A motion for a new trial and in arrest of judgment was overruled. Judgment for the plaintiff. The evidence is in the record.

Several errors are complained of. The ruling on demurrer was erroneous, because of the want of an averment of demand, but the error was avoided by the withdrawal of the demurrer; Eor the same reason the instruction was wrong, and the motion for a new trial should have prevailed for insufficiency of evidence, unless the proof of demand was avoided by the form of pleading. This we think was not so. It was not sufficient to show merely the collection and that it was not paid, for the liability to the action did not arise upon such showing alone, without a demand, on account of circumstances that would dispense with the averment and proof of a special request.

J. B. Brown and James Park, for the appellant. Per Curiam.

The judgment is reversed, with costs. Cause remanded.