*278On Petition for Rehearing.
Hottel,' J.6. In a petition for rehearing it is very earnestly urged by appellee that this court erred in its original opinion in holding that the memorandum filed with the demurrer to the answer herein presented the question of the sufficiency of such answer under §5308 Burns 1914, Acts 1907 p. 46. It is claimed that the opinion in ,such respect runs counter to all other opinions, both of the Supreme Court and this court, rendered, either before or since, the opinion in the instant case was rendered. In support of this contention appellant cites: Stiles v. Hasler (1914), 56 Ind. App. 88, 104 N. E. 878; Slate, ex rel. v. Bartholomew (1911), 176 Ind. 182, 95 N. E. 417, Ann. Cas. 1914 B 91; Spiro v. Robertson (1914), 57 Ind. App. 229, 106 N. E. 726; Blair Baker Horse Co. v. Railroad Transfer Co. (1915), 59 Ind. App. 505, 108 N. E. 246.
The cases cited are easily distinguishable from the instant ease. An examination of them will disclose that the memorandum involved in each attempted to point out in the pleading to which it was addressed some omitted fact or some infirmity in the pleading resulting from a defective or insufficient averment of fact, while in the instant case the grounds of the memorandum relied on are not grounds or objections based on the absence from the answer of any averment of a particular fact or facts, nor are such grounds based on the insufficiency of the averment of any particular fact or facts, but on the contrary, the grounds of the memorándum here involved are evidently intended to challenge the legality or validity of the contract on which the answer is based. The memorandum in either case must state the grounds of the objection to the pleading, but where the pleading is challenged because of the absence of a necessary averment or because of some infirmity in the manner of pleading, the trial court is entitled to have its attention specially called to the omitted averment or the particular *279infirmity relied on, and the demurring party should not be permitted, under the statute in question, by the use of uncertain or ambiguous language in his memorandum, to cover up or conceal the real infirmity in the pleading of facts which he intends to present to the appellate tribunal; but where, as in this case, the ground of the memorandum challenges the pleading in its entirety because of the invalidity or the illegality of the contract on which it is based, such challenge is sufficient to present such question, without pointing out the particular statute on which such invalidity is based. The court being charged with the knowledge of the law, there could be no good reason for holding that a memorandum in such a case should point out the specific statute which rendered invalid the contract so challenged. Section 344 Burns 1914, Acts 1911 p. 415, does not require the demurring party to cite the statute or decisions on which he bases the ground of objection stated in his memorandum.
Where, as in this case, the trial court has its attention called to the invalidity of the contract on which the pleading is based, and the reason for its invalidity, §344, supra, has been substantially complied with and in such a case it would be a miscarriage of justice to permit a claim, otherwise meritorious, to be defeated by a contract made in violation of an express statute. The petition for rehearing is therefore overruled.
Note. — Reported in 106 N. E. 174; 109 N. E. 411 See, also, under (1) 3 C. J. 1409 ; 2 Cyc. 1913 Anno. 1013-36; (2) 3 C. J. 1352; 2 Cyc. 1002; 36 Cyc. 448; (3) 26 Cyc. 1096; (4) 3 Cyc. 223; (5) 31 Cyc. 316, 319; (6) 31 Cyc. 316.