21 Ind. App. 459 | Ind. Ct. App. | 1899
The appellant has assigned as error the overruling of its motion to set aside the service of process upon it. In the bill of exceptions by which it was sought to save the appellant’s exception to this ruling, the motion and affidavits in support thereof are’ not set out. They are mentioned, and at the places where they should have been but are not copied into the bill, the words “here insert” are written in parentheses. That they cannot thus be made a part of the record, though copied elsewhere in the transcript by the clerk, is a matter so often decided that we need only mention it.
The complaint of the appellees, Oliver S. Clendenning and Joseph H. Hart, was against the appellant and one Benjamin L. Blair, spoken of in the complaint as an agent of the appellant. A demurrer of said Blair to the complaint was sustained, and he had judgment in his favor. The demurrer of the appellant to the complaint for want of sufficient facts was overruled, and this is assigned as error.
In the complaint it.was shown that said Clendenning and Hart contracted with the appellant for one No. 4 Austin Rock Crusher, for which said Clendenning and Hart executed their note, payable to said Blair for $1,000, due ninety days after date, payable at Vevay Deposit Bank of Vevay, Indiana, which note was by said Blair at once transferred to the Merchants National Bank of Indianapolis; that Clenden
It was necessary, in order to state a cause of action, to show not only a breach of the written contract on the part of the defendant to the damage of the plaintiffs, but also performance on the part of the plaintiffs of all stipulations, upon the doing of which by them their right of action depended, or to show a subsequent contract, upon a sufficient consideration and performance thereof on the part of the plaintiffs, with the defendant’s failure to perform, to the damage of the plaintiffs. The complaint shows that the crusher would not do the work which under the contract it was to do. The written contract provided that, if the crusher should not do the' work represented, that is,
If it be true, as some portions of the argument would seem to indicate, that there was reliance upon an oral agreement made between the parties after the crusher had been tested, under which the machine was to be retained by the plaintiffs, such agreement should have been made the basis of the complaint. And, if it was the purpose to show such a subsequent agreement in the pleading, it is not sufficiently stated. The pleading should be drawn with such exactness that a definite theory of the action may be clearly manifested therein. See Ohio, etc., Co. v. Hensel, 9 Ind. App. 328; Springfield, etc., Co. v. Kennedy, 1 Ind. App. 502; Davis v. Gosser, 41 Kan. 414, 21 Pac. 240.
The judgment is reversed, and the cause is remanded, with instruction to sustain the demurrer to the complaint. '