This was an action by Henry L. Crane and John E. McQuaid, against David Wasson and John W. Eriddle, on a promissory note.
Omitting the caption and signature of counsel, the complaint was as follows:
“ Henry L. Crane and John E. McQuaid complain of David Wasson and John W. Eriddle, and say that, on the 2d day of October, 187 3, the defendants, by the name of Wasson & Eriddle, made their certain note, which is. herewith filed, by which they promised, four months after date, to pay to the plaintiffs, by the name of Crane & Mc-Quaid, the sum of three hundred and sixty-four T5°5 dollars and attorney’s fees if suit be instituted on the note, value received, without relief from valuation laws, with ten per cent, after maturity. The attorney’s fees are worth eighty dollars. Plaintiffs asked judgment for five hundred and. twenty dollars, and other relief.”
A note, eorresnonding in all respects with the deserip*584tion of tlie note alleged to have been executed as above, was filed with the complaint.
Friddle demurred separately to the complaint, for want of sufficient facts, but his demurrer was overruled. Was-son made default.
The court trying the cause made a finding in favor of the, plaintiffs for the amount of the note, with interest and attorney’s fees, and rendered judgment against both of the defendants.
The defendants have appealed, and both have assigned error upon the overruling of Friddle’s demurrer to the complaint.
It is contended that the complaint was bad for two reasons :
First. That the note alleged to have been filed with it was not sufficiently referred to and identified ;
Second. That it did not aver that the note sued on remained unpaid.
The first objection is not well taken. The reference to the note as “herewith filed” was in substantial accordance with the statutory form of a complaint on a promissory note, and was quite sufficient where it appeared, as in this case, that such a note as the one described was actually filed with and accompanied the complaint. Montgomery v. Gorrell, 51 Ind. 309; Hiatt v. Goblt, 47 Ind. 319; Stafford v. Davidson, 18 Ind. 494.
As to the second objection, it may be said that this court has frequently held that a complaint on a promissory note must contain an averment, either in terms or equivalent words, that the note remains unpaid. Downey v. Whittenberger, 60 Ind. 188; Higert v. The Trustees of Indiana Asbury University, 53 Ind. 326; Lawson v. Sherra, 21 Ind. 363.
In support of these rulings it may be urged, in the first place, that a pleading founded upon contract is never complete, either in form or in substance, unless it alleges a *585breach of such contract on the part of the party complained of. In the next place, the statutory form, above referred to (2 R S. 1876, p. 357), clearly contemplates such an averment. As technical as this second objection may seem to be, we think the interests of good pleading are better subserved by an adherence to our previous decisions, requiring the complaint in a case like this to show by some suitable averment that the note remains unpaid.
We are, therefore, of the opinion that’the court below committed what must be held to he a material error in overruling the demurrer to the complaint.
The judgment as to both the appellants is reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion.