Downey v. Whittenberger

Niblack, J. This was a suit by Jacob Whittenberger, against Levi M. Downey, John W. Davis and Benjamin F. Montgomery, on a promissory note payable to one C. D. Jones, for the sum of six hundred dollars, with ten per cent, interest from date, and ten per cent, attorney’s fees, in case of suit, and endorsed by the said Jones to one Emma Brown, and by her endorsed to the plaintiff. The complaint describes the note, and .the endorsements upon it, in substantially the usual form, and concludes as follows: “ That there is due, as principal and interest, on said note, the sum of 670 dollars, and as attorney’s fees the further sum of 67 j-jj-j- dollars, making a total now due of 737 dollars.” This averment was followed by a demand for judgment, and for all otber proper relief. The note, with the endorsements, was filed with the complaint. The defendants demurred to the complaint, for want of sufficient facts to constitute a cause of action, and their demurrer being overruled, they refused to answer further, and judgment was rendered against them, for the amount ■of the note, together with interest and attorney’s fees. The objection to the complaint is, that it did not aver ifchat the note remained unpaid. It has been several times held by this court, that such [189] an averment, in terms or in equivalent words, is necessary-in a complaint on a note (Green v. Louthain, 49 Ind. 139, and cases there cited); but we think that the portion of the complaint quoted above showed sufficiently that the note sued on had not been paid," and was equivalent to an averment that it remained unpaid. Deutsch v. Korsmeier, 59 Ind. 373. "We can not hold, that the court erred in overruling the demurrer to the complaint. The judgment is affirmed, at -the costs of the appellants.