
    Hornaday v. Campbell.
    Pleading — Practice.—The decision herein relates to the sufficiency of certain pleadings, and can not be briefly stated.
    APPEAL from the Hendricks Common Pleas.
   Worden, J.

This was an action by Campbell against Hornaday to recover compensation for services performed by the plaintiff for the defendant as an attorney at law. Issue, trial, verdict and judgment for the plaintiff.

There were two paragraphs in the complaint. On the second no question arises and it need not be noticed. The first alleges in substance that there was an action pending in the Circuit Court of said county, by the State upon the relation of Kennedy, against the Danville and White Dick Plank Road Company; that the defendant agreed with the plaintiff, who was an attorney at law-, that if he, the plaintiff, would assist said Kennedy in the prosecution of said action, the defendant would pay him or secure him the payment of a reasonable fee, therefore, &c.; that the plaintiff, in pursuance of the contract, did assist in the prosecution of said cause, and that he attended and engaged in the trial thereof; that before the final determination of said cause the plank road company discontinued their toll gate, and have, from that time to the present, discontinued-the collection of toll on the road, and that Hornaday abandoned the prosecution of the said action, the object thereof having been accomplished, and that the defendant has not paid, &c.

C. C. Nave, for the appellant.

L. M. Campbell and P. S. Kennedy, for the appellee.

The defendant moved to strike out a certain part of the complaint, which motion was overruled, and exception taken. In looking through.the part of the complaint which the defendant desired stricken out, we find that it includes the averment of performance on the part of the plaintiff. Had the motion prevailed there would not have been enough left to sustain the action. The motion was properly overruled.

The defendant then demurred, but the demurrer was overruled, and correctly. The paragraph is clearly sufficient. On the trial the defendant objected to certain evidence on the ground of irrelevancy. Some of the evidence thus objected to might, perhaps, have been properly excluded, but if so we do not see how its admission has prejudiced the defendant.

The evidence justifies the verdict. There was some conflict in some respects, but take it all together the motion for a new trial was properly overruled.

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