72 Ind. 425 | Ind. | 1880
— The first and second paragraphs of the complaint of the appellees are founded upon bills of exchange, drawn by Louis Snider and accepted by the firm of Smith & Hall, of which it is alleged all the appellants were members. Demurrers were unsuccessfully addressed to each of these paragraphs, and appellants complain of the action of the court in overruling them.
The contention of the appellants is, that the complaint does not show any title in the appellees to the bills of exchange sued on, and that no right in appellees to maintain an action thereon is shown by the complaint. The allegations of title are essentially the same in both paragraphs, and are as follows: That said Louis Snider is deceased, and that the appellees “are his successors in and to his business, and, as such, are the legal and bona ficle holders of the bill of exchange.” There is no allegation that Louis Snider was a partner of the appellees, nor is the claim of ap
It is a familiar rule of pleading that a complaint or declaration must show title. Jaccard v. Anderson, 32 Mo. 188; Stephens Pl. 304. The plaintiff, in an action upon a bill of exchange or promissory note, must show a right in himself to maintain an action thereon. Archer v. Spencer, 3 Blackf, 405; Reed v. Garr, 59 Ind. 299; Barcus v. Evans, 14 Ind. 381; Rousch v. Duff, 35 Mo. 312.
The allegation in the complaint under examination is a peculiar one. It does assert generally that the appellees are-the bond fide holders of the bill, but it expressly limits and restricts this general statement by specifically showing, that they are such holders because they are the successors in business of Louis Snider. This is the only effect that can be given to the allegation that they are his successors in business, and, as such, the holders of the bill. The ownership they assert is such, and such only, as the fact of their being the successors in business of Louis Snider confers upon them. The nature of their title is specifically stated, and the specific statement of title is the one which must govern. Reynolds v. Copeland, 71 Ind. 422. The facts given as constituting the foundation of the claim of title are not sufficient to support it. A man, by becoming the successor in business of another, does not become the owner of bills of exchange of which that other died possessed. The facts, which affirmatively appear upon the face of the complaint, so far from showing title in the appellees, show, that in truth they have none whatever. All that the allegations of the complaint upon this point substantively assert is, that Louis Snider died the owner of the bills, and that the appellees succeeded to his business. In the form in which it is expressed, the statement that appellees are the owners is merely a conclusion of law drawn by the pleader from the two facts,. Snider’s death, and their succession to his business. Clearly
The third paragraph of the complaint is upon an account for goods sold and delivered to the firm of Hall & Smith, x>i which all the appellants are alleged to have been members. Upon this paragraph of the complaint, an instruction was based by the trial court, of which the appellants Richiardson and Annabel complain. By their motion for a new trial, by their assignment of errors, and in their brief, these appellalits insist that the first instruction given to the jury was erroneous. In order that the force of the instruction •complained of may be understood, it is necessary to give a brief synopsis of the evidence touching the point upon which the instruction bears. Smith, Hall, Richardson and Annabel had been partners, but in November, 1875, the partnership was dissolved, Richardson and Annabel retiring, and a notice of dissolution published in the newspapers; but the ■business was continued, without any change of the firm name, by Smith and Hall. The firm of Smith & Hall, prior to November, 1875, had dealt with Louis Snider, but had never dealt with the firm of Louis Snider’s Sons. Louis Snider was represented in his dealings with Smith & Hall prior to the withdrawal of Richardson and Annabel, by some of the appellees, but they were not, however, associated with him as partners, but simply as agents. The goods, described in the third paragraph, were sold after the dissolution of the partnership which had existed between the appellants, and the withdrawal of Richardson and Annabel from the firm of Smith & Hall. The instruction under mention is somewhat lengthy and confused, and it need not be copied, as the legal proposition, which it asserts, can be stated in a condensed form. It declares, in substance, that if any of the appellees, as agents of Louis Snider, had acquired knowledge from the dealings of Smith & Hall with Louis Snider, that
Judgment reversed, at costs of appellees.