Clark et al. v. Carey.

Clark made default; Teter demurred separately to the complaint, but his demurrer was overruled.

He then answered separately in two paragraphs: 1. In general denial;

2. That he was an accommodation endorser merely, and not a maker, of the note.

A demurrer being sustained to the second paragraph of Teter's answer, the cause was submitted to the court for trial. There was a finding in favor of the plaintiff for the amount of the note, with interest, and judgment against both the defendants for the amount thus found to be due upon the note.

In their argument here upon the sufficiency of the complaint, the appellants contend that there is nothing upon the face of the note to show that it was payable at a bank in this State, and that for that reason the note was not governed by the law merchant, within the meaning of sections 6 and 16 of the act concerning promissory notes, approved March 11th, 1861. 1 R. S. 1876, p. 635. That the note not being thus governed by the law merchant, and Teter being, prima facie, an endorser only, nothing was shown in the complaint to make Teter jointly liable on the note with his co-defendant, Clark.

As regards the character of the note sued on, the precise question raised here in this action was presented and decided in this court in the case of The Indianapolis Piano Manufacturing Co. v. Caven, 53 Ind. 258.

It was held, in effect, in that case, that a note sued on in the courts of this State, not appearing to have been made elsewhere, will be presumed to have been executed in this State; and that, where a note, 'executed in this State is made payable at a bank named, without designating its locality, it will also be presumed that the bank named is located in this State.

It was hence presumed in that case, as it must be in this,

The Board of Commissioners of Jennings County v. Verbarg.

that "Fletcher's Bank" was a bank in this State, within the meaning of the statute above referred to.

We are thus led to the conclusion, that the note sued on in the case at bar was governed by the law merchant, and that, consequently, the court did not err in overruling Teter's demurrer to the complaint.

The conclusion we have reached does not, in any manner, conflict with the ruling of this court in the case of Porter v. Holloway, 43 Ind. 35, as in that case no particular bank was designated in the note.

Some other questions were reserved upon the ruling upon the demurrer to the second paragraph of Teter's answer, and upon the evidence; but what we have said practically disposes of those questions, also, adversely to the appellants, as they are, in fact, but different presentations of the same question in different forms. Walker v. Woollen, 54 Ind. 164; Burroughs v. Wilson, 59 Ind. 536.

The judgment is affirmed, at the costs of the appellants.

63 -107

126 361

63 107

THE BOARD OF COMMISSIONERS OF JENNINGS COUNTY v.

VERBARG.

PLEADING.-Practice.-Demurrer.—A demurrer to the whole of a complaint
consisting of several paragraphs should be overruled, if any one of the
paragraphs be sufficient.
SUMMONS.-County Commissioners.-In an action against certain persons
designated in the complaint as the "Commissioners of * County,"
the summons served upon them named each one personally, and styled
them Commissioners of the County of * * "

Held, that the summons was sufficient.

*

SAME.-Pleading.-Common Count.-A complaint in the nature of a common count, with a bill of particulars attached thereto, may properly be used in an action on account, against the board of commissioners of a county.

164 562

The Board of Commissioners of Jennings County v. Verburg.

SAME. Letting of Public Work. — Contract. - Pleading. A complaint against a board of commissioners alleged, that, pursuant to a proposition by the board for bids on certain work to be done for the county, the plaintiff had made a bid, which was accepted by the board, conditioned upon his giving bond, which he had done, and averred performance by him and a breach by the board.

Held, on demurrer, that the facts alleged constitute a contract, and that the complaint is sufficient.

SAME.-Answer.-Failure to Advertise.-Notice of Letting.-It is no answer to such action to allege that such letting had been made without advertising.

SAME.-Fraud.-Public Policy.-It is a sufficient answer to such complaint to allege that the plaintiff, by promises of reward made by him to one who intended making a bid to do the work for a less sum than that bid by the plaintiff, had induced him not to make a bid. EVIDENCE.-Proposition for Compromise.-An unaccepted proposition for a compromise of a legal controversy is not competent evidence for either party.

From the Jennings Circuit Court.

T. C. Batchelor, for appellant.

J. Overmyer, for appellee.

BIDDLE, J.-The appellee filed his complaint in the Jennings Circuit Court, against "Samuel M. Crist, Joseph B. Smith and Edward Marsh, commissioners of Jennings county, Indiana," and caused a summons to be issued thereon by the clerk, commanding the sheriff, in the name of the State, to summon "Samuel M. Crist, Joseph B. Smith and Edward Marsh, commissioners of the county of Jennings, Indiana, to appear" and answer the complaint.

The summons was returned by the sheriff, "Served by reading to the defendants."

After the service and return of the summons, the appellee filed a complaint against "The Board of Commissioners of the County of Jennings."

The board of commissioners then entered a special appearance, and moved to quash the summons as to the board. The court overruled the motion, and required the

The Board of Commissioners of Jennings County v. Verbarg.

board to answer the complaint, to all of which the board reserved exceptions.

We think this summons is sufficient under section 37, 2 R. S. 1876, p. 49. The addition of the words, "Commissioners of the county of Jennings," to the names of the commissioners, was sufficient to inform them who was sued. Seé, also, Hughes v. Osborn, 42 Ind. 450.

The complaint contains three paragraphs. The first is a common count for work and labor done, and materials furnished; the second is upon a special contract to build a fence; and the third is for stone belonging to the appellee, converted by the appellants.

Demurrer to the complaint, generally, for a defect of parties, and because it does not state facts sufficient to constitute a cause of action. Demurrer overruled; exceptions.

Separate demurrers to the second and third paragraphs of complaint; overruled to the second, and sustained to the third; exceptions.

Answer to the whole complaint, in five paragraphs.

Answer to the second paragraph of complaint, in four paragraphs.

Demurrer, for the want of facts, to the third, fourth and fifth paragraphs of answer to the complaint. Overruled to the fourth and fifth; sustained to the third; exceptions.

Demurrers to the second, third and fourth paragraphs of answer to the second paragraph of complaint, for the want of facts. Sustained to the third and fourth; overruled to the second; exceptions.

Reply.

Trial by jury; verdict for the appellee.

Motion for a new trial overruled; exceptions; judgment; appeal.

Questions upon the following rulings are presented by assignment of error, and discussed by the parties : 1. Overruling demurrer to the complaint.

The Board of Commissioners of Jennings County v. Verbarg.

There is no error in this. It is so plain we need not discuss it. If either count was good, the demurrer was properly overruled. The first paragraph is in the form of a common count, with a bill of particulars sufficiently specific.

2. Overruling the demurrer to the second paragraph of complaint.

This paragraph sets up a proposition from the appellant to receive bids for building a certain specified fence, avers that the appellee made a certain bid to build the fence, an acceptance of the bid by the appellant upon the condition that the appellee would give bond for the performance of the work, and that the appellee gave the bond required, which was accepted by the appellant. These facts constitute a contract. Performance and the proper breaches are averred. The paragraph is sufficient.

3. Sustaining the demurrer to the third paragraph of answer to the second paragraph of the complaint.

This third paragraph avers that the contract was let without advertising. If this has any significance at all, it could not be set up by the appellant, to defeat its own contract. The demurrer was properly sustained.

4. Sustaining the demurrer to the fourth paragraph of answer to the second paragraph of complaint.

This paragraph is as follows: That, after the adoption of the said plans, and recording the same with the specifications, as alleged in the complaint, the plaintiff, well knowing that one Henry Hampson was desirous to build said stone fence for three dollars per cubic yard, went to the said Hampson and corruptly proposed to him, that, if he would make no bid therefor, he, Verbarg, would get the contract for building said fence for four dollars and fifty cents per cubic yard, and would then divide the profits with the said Henry Hampson; that, by reason of the said corrupt proposition and promise, the said Hampson made no