McCormick Harvesting Machine Co. v. Glidden

94 Ind. 447 | Ind. | 1884

Elliott, J.

The appellant insists that the third paragraph of the appellee’s answer is bad, for the reason that it fails to’ set forth a copy of the written instrument on which it is founded. The answer contains this statement: “The plaintiff represented, covenanted and warranted by its written agreement, a copy of which is herewith filed and made part hereof,” but no copy of the agreement was filed with the answer. In Brown v. State, ex rel., 44 Ind. 222, it was said: “The statute is imperative that the instrument or a copy .of it must be filed with the pleading; alleging that it is filed is not enough. It must be in fact filed; and if not, the pleading is demurrable.” Many cases affirm the like doctrine, among them Montgomery v. Gorrell, 51 Ind. 309; Ashley v. Foreman, 85 Ind. 55. The proper course is to identify the instrument referred to by placing upon it some mark or designation ; but it is held that if the instrument follow the pleading referring to it, the presumption will be that it is the one referred to. Carper v. Kitt, 71 Ind. 24; Hill v. Mayo, 73 Ind. 357; Peoria M. & F. Ins. Co. v. Walser, 22 Ind. 73; Reed v. Broadbelt, 68 Ind. 91; Friddle v. Crane, 68 Ind. 583. In this case the instrument is not set forth with the pleading in any form. Judgment reversed.

Filed April 3, 1884.