Jaqua v. Cordesman & Egan Co.

Elliott, J. A complaint on account for work and labor performed at the request of the defendant, which charges that the defendant is indebted to the plaintiff, but omits to allege that the debt is due and unpaid, is good. Pittsburgh, etc., R. W. Co. v. Thornburgh, 98 Ind. 201; Hartlep v. Cole, 94 Ind. 513; Heshion v. Julian, 82 Ind. 576; Mayes v. Goldsmith, 58 Ind. 94. The appellee requested the court to instruct in writing, but the appellant did not, and the court gave an oral instruction. The appellant can not have a judgment of reversal on the ground that the court denied his adversary’s request. Thompson Charging the Jury, sections 106, 107; Columbus, etc., R. W. Co. v. Powell, 40 Ind. 37. In the present instance the appellee, by the request for a further instruction, practically withdrew the request to instruct in.writing, so that there was really no ruling upon the request of which even the appellee could rightfully complain. Exceptions to instructions made for the first time in the motion for a new trial are too late to be available. Judgment affirmed.