On Petition for Rehearing.
Roby, J.1. Appellant renews its attack upon the sufficiency of the first paragraph of complaint, citing the case of Bedford Belt R. Co. v. McDonald (1895), 12 Ind. App. 620, in which it was held that a physician must aver that he had, prior to the rendition of services sued for, procured a statutory license. The point made by appellant is not supported by the opinion, as we read it. If the opin*482ion were construed as holding that the common count is not good against a railway company in an action of this sort, its correction as to such expression would be required.
“In every species of the common count, the averments, by means of certain prescribed formulas, presented what the pleader conceived to be the legal effect and operation of the facts instead of the facts themselves. * * * The circumstances under which one person could be liable to another for money had and received were very numerous. * * The mere averment that the defendant was indebted for money had and received admitted any of these circumstances in its support, but it did not disclose nor even suggest the real nature of the liability.” Pomeroy, Code Remedies (4th ed.), §438. Logically, as shown by Mr. Pomeroy in the section just cited, the common count does not meet the requirement of the code — that facts be stated in plain and concise language; but the decisions in this State, as in most other states, establish the sufficiency of the common count as a complaint. Fort Wayne, etc., R. Co. v. McDonald (1874), 48 Ind. 241; Curran v. Curran (1872), 40 Ind. 473, 477; Pomeroy, Code Remedies (4th ed.), §436. The matter is purely one of pleading. Plaintiff cannot recover except upon proof that the request or contract he relies upon was made by a competent •person. Had he chosen to plead the facts, instead of the conclusion that defendant is indebted, etc., then much that counsel say would be correct, but so long as there may, under some state of facts, be liability, the presumption is that such possible facts are relied upon.
2. *4835. *482It is said in the brief that the court had “no right to designate” Mr. McDonald “as claim agent.” The term has a well-understood meaning, and while the person named testified that he was “law agent for the' Southern, ’ ’ he also testified to facts which show his business to have been the adjustment of claims, as was also shown by other testimony, so that the term “law agent,” meaningless *483in itself, does not seem so appropriate as “claim agent,” which latter term was used in the instructions and otherwise during the trial. The real question, however, is not one of name, but of substance. The verdict carries with it at this stage a finding for appellee upon the question of McDonald’s authority, and such finding is supported by evidence.
The petition for rehearing is overruled.