Allen v. Toner , 24 Ind. App. 121 ( 1900 )

Black, J.

The court sustained a demurrer of the appellees for want of sufficient facts to the amended complaint of the appellants against the appellees and George Hiclde. This ruling is assigned as error. The complaint Avas in one paragraph. In it the appellants sought to recover on a promissory note made by the defendant Hiclde for rent of a farm let to him by the appellants by a written lease. The note and the lease were filed with the complaint as exhibits. The cause was continued as to the defendant Hiclde for service of summons. As against the appellees the complaint was in tort, for the conversion of a quantity of Avheat, being a part of a crop grown upon the leased land and delivered to the appellees by said Hiclde.

It may be remarked that the complaint did not contain any allegation as to the value of the wheat alleg’ed to have been converted, or an averment that the appellants sustained any damage by reason of the conversion; and, therefore, under the rule stated in Ryan v. Hurley, 119 Ind. 115, it could not be regarded as a sufficient complaint for conversion; but the only question argued by counsel relates to the proper construction to be given by the court to the lease, the contents of which can not be known without resort to one of the exhibits. The action against the appellees not being founded on this written instrument, the exhibited lease can not be regarded as aiding the complaint against them. §365 Burns 1894, §362 Horner 1897. Therefore, the question argued by counsel can not be decided, for we can not take any notice of the lease ffied with the complaint. Judgment affirmed.