
    Harrison v. Bryant.
    Debt by A. against B. and O. on a note. Plea, that the note was made by B., as principal, and O. as surety; that prior to and at the time of mailing the note, A. and B. were partners in the drag business in the town of V., and in consideration that B. would pay A. a certain sum, and the defendants would execute said note and another for a like sum, A. agreed to transfer to B. his interest in the business and to retire from and not engage in the business in V. for one year; that accordingly B. paid the sum agreed upon, and executed the notes, with O. as surety; that A. did not comply with bis agreement, but for a long period withheld and concealed from B. a part of the drugs, during which time he was prevented from selling and mailing profits out of them; nor did A. retire from business, but, in fraud of the agreement, resumed said business in V., &c., to the great damage, &c. Special demurrer to the plea. Held, that the plea was objectionable for not alleging any specific amount of damage sustained by B.
    
    Whore the general issue and a special plea have been filed, and the matter specially pleaded was admissible under the general issue, the judgment will not be reversed though a demurrer to the spocial plea has been erroneously sustained.
    
      ERROR, to the Porter Circuit Court.
    
      Wednesday, May 31.
    
   Davison, J.

Bryant sued Harrison and Campbell, in debt, upon a note for the payment of 150 dollars. Pleas, 1. The general issue. 2. Failure of consideration. The facts set up in the second plea are these:

Harrison was the principal in the note, and Campbell his security. Sometime previous and up until the execution of the note, Harrison and Bryant were partners in the drug business in the town of Valparaiso; and in consideration that Harrison would pay Bryant a certain amount of money, and the defendants would execute the note declared on, and another for a like sum, Bryant agreed that he would transfer to Harrison all his interest in said business; would retire from the drug business and not engage in the sale of drugs in said town for the term of one year. Pursuant to this agreement, Harrison paid Bryant the amount agreed on; with Campbell as his surety, Harrison executed the note in suit, and also another for 150 dollars. Bryant failed to comply with his agreement. For a long space of time, he withheld and concealed from Harrison a portion of the drugs, during which he was prevented from selling and making profits out of them. Nor did Bryant retire from business, but in fraud of the agreement, resumed business in said town, &c., to the great damage of Harrison, See.

To this plea there was a special demurrer sustained. The Court tried the issue upon the first plea, and found for the plaintiff. Motion for a new trial overruled, and judgment on the finding of the Court.

The second plea is objectionable, because it is not shown that Harrison, on account of Bryant's violation of the contract, sustained any specific amount of damage. Therefore the demurrer was correctly sustained.

But had the ruling of the Court been erroneous, such error, in this case, would have been insufficient to reverse the judgment. The general issue was in, and under it the matter set out in the plea would be admissible. 8 Blackf. 41, 427.—1 Ind. R. 322.—3 id. 286.

J. A. Liston and J. S. Harvey, for the plaintiffs.

J. B. Niles, for the defendant.

Per Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.  