Israel ex rel. Scholl v. Reynolds

Error to Pike. In an action upon an instrument of indemnity, the plaintiff must aver in the declaration^ that it was given for a sufficient consideration, and that he has been damnified by having to pay. "Where a general demurrer is filed to several counts in a declaration, one of which is good,, the demurrer should be overruled.

This action was commenced by attachment. The first four counts in the declaration were special, and founded upon the following instrument of writing: “ St. Louis, Petty 5th, 1848. u I. G. Israel, esq. “ Dear Sir : In accordance with your request, we herein state, that according to our understanding with you, when we purchased your property, known as St. Louis, Ill., we will pay for the boiler purchased by you, for your saw mill, and not yet paid for by you, with the understanding, that the cost of said boiler does not exceed three hundred and fifty (350) dollars. “Yours, truly, W. T. Reynolds & Co.” The fifth count, was for work and labor; goods, wares, and merchandize, sold and delivered; money paid, laid out, and expended, and an account stated. To this declaration the defendants filed a general demurrer to the first, second, third, fourth and fifth counts; and to all the counts of said declaration, except the first, second, third, fourth and fifth, pleaded the general issue; to which last plea a similiter was added. There was a joinder in demurrer. The judgment of the Court below on the demurrer, is as follows : “ The demurrer filed to the first, second, third, fourth and fifth counts being heard, is sustained, and leave is given plaintiff to amend the second count in his declaration.” The plaintiff abided by the counts in his declaration, except as to the second count. This count was amended, demurred to as amended, and demurrer sustained. A trial by jury was had, on the issue joined, as the record represents, and a verdict was found for the defendant at April term, 1849, before Minshall, Judge. A motion for a new trial was made by the plaintiff, which was overruled. A bill of exceptions was filed, which it is unnecessary to notice, as the opinion of the Court is founded upon matters extraneous of the statements in the bill. The first count in the declaration states, that the defendants, as co-partners, made their certain instrument in writing, bearing date, &c., and thereby, then and there, promised the plaintiff in the words and figures following, to wit, (here setting forth the foregoing instrument verbatim,) and then and there delivered the said instrument or undertaking in writing, to the said plaintiff, and avers that the boiler cost the sum of three hundred and fifty dollars, and that the cost of the boiler did not exceed the sum of money in the said instrument, &c., specified, and the said defendants then and there, in consideration of the premises, undertook and promised to pay to the said plaintiff the said sum of three hundred and fifty dollars, according to the tenor and effect of said instrument, &c.j avers the indorsement before payment to one Stephen H. Gray, and an indorsement from Gray to the said Edward B. Scholl, for whose use this suit is brought; by means whereof, and by force of the statute, the said defendants became liable to pay Scholl the sum of money in the said instrument, according to its tenor and effect ; and being so liable, undertook and promised to pay the plaintiff, for the use of Scholl, the sum of money specified in the said instrument or undertaking in writing, according to the tenor and effect thereof. The second count is like the first, omitting an averment of the assignments. The third count omits the instrument, but sets forth its tenor and effect, and omits averment of assignment, but is in other 'respects like the first count. The fourth count sets forth, that the defendants made their certain other instrument or undertaking in writing, bearing date a certain day and year therein mentioned, to wit, the day and year aforesaid, and then and there delivered the same to the said plaintiff, and then and there promised to pay the said plaintiff the sum of three hundred and fifty dollars, according to the tenor and effect of said instrument or undertaking in writing. The fifth count is the common count. The only breach assigned is at the conclusion of the fifth count. The plaintiff below sued out this writ of error, and assigns for error the refusal of the Court below to grant a new trial} the sustaining of the demurrer to the first five counts, respectively, of said plaintiff’s declaration; that the verdict of the jury and judgment of the Court is contrary to the law and evidence, and that the verdict and judgment should have been for the plaintiff, and not for the defendant.