16 Ind. 138 | Ind. | 1861
Complaint, in three paragraphs, by John Sidles and Samuel Davis, surviving members of the firm of Sidles, Davis & Co.; the first, on an account stated; the second and third are similar, each being upon a warehouse receipt for wheat deposited. The following is a copy of one of them:
“ A. A. Hubbell <& Co's Warehouse, Huntington, August 28, 185T. No. 152. Received in store, from Joseph Hevis, forty-three bushels, twenty-four pounds of white wheat.
A. A. Hubbell.
For value received, I assign the within to Skiles c& Davis.
«J. Nevis.”
Demurrer to the first paragraph of the complaint, on the ground that it did not state facts sufficient; to the second and third for the same reason, and because of a defect of parties, in this, that Hevis should have been made a party.
It is insisted that the first paragraph is bad because it does not state who constituted the firm of Skiles, Davis &c. Co.; and consequently it does not aver to whom the promise was made, nor how plaintiffs became survivors. As to this, we are of opinion that the .complaint is, in that respect, imperfect. 2 Chit. PI. 92, 93. As to the second and third paragraphs of the complaint, the objection as to parties is well taken. In this respect the case falls within the reason of the case of Mewherter v. Price, 11 Ind. 199. The receipts can not, as urged by the appellees, be regarded as promissory notes for the payment of money, within the meaning of the statute authorizing assignments.
The judgment is reversed, with costs. Cause remanded, &c.
