Jones v. Dronberger

Kasha, J. Dronberger averred in his complaint that Jones was indebted to one Morecm, in account, in the sum of $100; which account had been on, &c., by said Moreau, presented to said Jones, the items examined, and the same pronounced correct, and that he then promised to pay the same; that a copy is filed, &c., and that afterward, &c., said Moreau sold and transferred the same to said plaintiff, &c. Neither a copy of the account, nor of the assignment thereof, appears to have been filed with the complaint. A demurrer was 'filed by Jones, but, without any disposition having been made of the same, an answer was filed, by him, in three paragraphs. 1. In denial. 2. That said Moreau was not on, &c., the sole owner of said claim; but that the same, if any thing was due, was due to said Moreau and one Davis; because they were partners when, &c. 3. Payment to said Moreau. There was a demurrer to the second paragraph of the answer, of which no disposition appears in the record. The plaintiff replied, in denial. Moreau, who was joined as a defendant, answered that he had no interest in the suit, &c. Trial,-verdict and judgment for plaintiff, over a motion for a new trial. The evidence is in the record. That of the plaintiff consisted of the testimony of Moreau, who was admitted, over the objection of Jones, to testify to the services rendered, the agreement of Jones, as to the amount, and his promise to pay, &c.; that Davis had no interest, the partnership having been dissolved before the services were rendered, and that Jones had not paid any thing on the account transferred, the payments made being applicable on other transactions. That Moreau, was not a competent witness, upon all the issues formed, has been heretofore decided—Swift v. Elsworth, 10 Ind. 205—even if he had been the assignor of a promissory note. J. Harrison and S. Thrasher, for appellant. H. G. Hewcomb and J. Ta/rJdngton, for appellee. Whether the assignor of an account is a necessary party defendant; and whether he can be a witness at all, to prove the account, or to disprove a set-off or payment, are questions, the decision of which, under our statutes, requires more investigation than has been bestowed upon this case. The complaint was defective, not being accompanied by a copy of the account nor of the assignment, if in writing, or for not containing an averment to that effect, if it was not. Per Ouriam. The judgment is reversed, with costs.