Howorth v. Scarce

Elliott, J.

Suit by Scarce, as assignee of a promissory note, against Howorth, the maker. There was an answer in two paragraphs, alleging a failure of consideration. Reply, denying the answer. A trial resulted in a finding for the plaintiff. The defendant moved in arrest, which was overruled, and judgment on the finding. Howorth appeals to this court.

The complaint contains no direct averment that the note “ remains unpaid,” which, the appellant claims, renders it fatally defective, and that the motion in arrest should therefore have been sustained. A good complaint on contract must contain the proper averment of a breach; and where, as here, the suit is on a promissory note, there should be an averment that the note, though due, remains unpaid. Without such an averment, the complaint is defective. Pace v. Grove, 26 Ind. 26 .

It is declared by section 101 of the code, that “the court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment can be reversed or affected by reason of such error or defect.” See also § 580.

In the case before us, the complaint contains the averment that the defendant, by the note, is indebted to the plaintiffj with a demand for a judgment for three hundred dollars. Ho demurrer was filed to the complaint. It is evident that no substantial right of the appellant was, or could be, affected by the defect. If the complaint had contained the formal allegation that the note remained unpaid, *279 the plaintiff' would not have been required to prove it, nor could the appellant have offered any evidence of its payment without first affirmatively pleading it, and we think the objection comes too late after verdict.

C. C. Nave, for appellant. W. A. McKenzie, for appellee.

The judgment is affirmed, with costs.