12 Ind. 668 | Ind. | 1859
In this case, there was a demurrer to the complaint overruled. Trial and judgment for the plaintiff, Bilsland.
The causes of demurrer are, first, as to the parties; and, second, as to the sufficiency of the complaint.
The complaint is upon an account stated between the parties, and is founded' on a record of the board upon that subject, a transcript of which is filed therewith. It is therein stated that “ The board now make settlement with John Biisland in relation to the balance due said Biisland, as assignee of William S. Patterson, on the contract with Patterson and Biisland, for erecting the county seminary building, which settlement is as follows.” Then appear the charges and credits, running through several years, entered in figures, with the following words at the end of the calculation, to-wit: “Leaving a balance due said Biisland, on said contract, at this date, March 12,1856, of 594 dollars, 27 cents, which is to be paid agreeably to the provisions of an order of this board in relation thereto, passed at its September session, 1856.”
But one point is made in the brief of appellant, and that is, as to whether the complaint shows a liability upon the part of the county,
Without doubt, the order entered upon the records of the board of county commissioners, in March, 1856, is a sufficient foundation for a complaint as upon an account stated, if the latter clause of it does not, in some way, change the liability of the board, or at least require additional averments, &c., by the plaintiff. We do not think that clause devolves upon the plaintiff the necessity of making averments in any manner different from those required in an ordinary suit upon an account stated, for the reason that the part of the entry, under consideration, is so informal, uncertain, and of such a tenor, if it speaks the truth, as to render it inoperative as a qualification of the then acknowledgment of unconditional indebtedness. It will be observed that the settlement and entry was made
We do not decide whether the plaintiff should have set forth the order referred to, in regard to payment, &c.,if the record had shown that such an order had been made previous to the time of said settlement; or whether it ought more properly to have been brought forward as a matter of defense.
The judgment is affirmed with 5 per cent, damages and costs.
Post, 675.