66 Ind. App. 292 | Ind. Ct. App. | 1917
To the first paragraph of complaint appellants filed a general denial, and also a special paragraph to the effect that appellee was under a five years’ written contract, terminating September 1, 1914, to heat appellants’ storeroom properly by the use of hot water circulated through a heating apparatus installed by appellee; that prior to September 1, 1914, appellee, without the consent of appellants, sub
Like paragraphs of answer were filed to the second, third, fourth, and fifth paragraphs of complaint. Appellee’s demurrer filed to each of the special answers was sustained. A trial resulted in a finding and judgment for appellee in the sum of $109.95.
We proceed to consider the alleged errors properly presented. In order that appellee might be entitled to recover under any paragraph of complaint, it was essential that it prove that it performed the work and furnished the material alleged, and
We would not be understood as expressing any opinion respecting the sufficiency of any paragraph of the complaint, and especially the second, third, fourth, and fifth paragraphs; but see Van Etten v. Kelly (1902), 66 Ohio St. 605, 64 N. E. 560; Alexander v. People (1883), 7 Colo. 155, 2 Pac. 894; In re Pearsons (1895), 110 Cal. 524, 42 Pac. 960. The error assigned here is not sufficiently specific to justify us in considering the complaint. See Baldwin v. Sutton (1897), 148 Ind. 591, 47 N. E. 629, 1067; Peters v. Banta (1889), 120 Ind. 416, 22 N. E. 95, 23 N. E. 84; Neyens v. Flesher (1909), 44 Ind. App. 44, 88 N. E. 626; Cobe v. Malloy (1909), 44 Ind. App. 8, 88 N. E. 620; Stockwell v. State, ex rel. (1885), 101 Ind. 1; Hunter v. Fitzmaurice (1885), 102 Ind. 449, 2 N. E. 127; McAfee v. Bending (1905), 36 Ind. App. 628, 76 N. E. 412; Lux, etc., Stone Co. v. Donaldson (1903), 162 Ind. 481, 68 N. E. 1014. The following also are instructive: §344, cl. 6, and §348 Burns 1908, and the same sections as amended in 1911, being §344, cl. 6, and §348 Burns 1914, supra. Also Johnson v. Stebbins (1854), 5 Ind. 364; Mason v. Toner (1855), 6 Ind. 328; Gimbel v. Smidth (1856), 7 Ind. 627.
The judgment is affirmed.
Note. — Reported in 118 N. E. 146.