#### Thurber vs. Jones.

A complaint against a defendant for not delivering goods received by him as a warehouseman, which contains no allegation that the goods belonged to the plaintiff, or that the defendant was under any obligation to deliver them to him, does not state a cause of action.

Where the judgment was by default, this court cannot look into what purports to be the evidence taken on the assessment of damages, but can only pass upon the errors apparent on the record.

APPEAL from the Circuit Court for *Manitowoc*County.

The complaint in this case alleges “ that the defendant is indebted to the plaintiff for moneys by the defendant re*17ceived from and for tbe nse of tbe plaintiff,” in tbe sum of $23 56 for that sum overpaid by tbe plaintiff to defendant for charges on certain goods received by tbe defendant as wharfinger for tbe plaintiff; and also, that tbe defendant received as a wharfinger, certain goods of tbe value of $133 63, and has not delivered them to tbe plaintiff, though tendered bis reasonable charges in that behalf and requested so to do.

Tbe defendant having made default, a referee was appointed to take proof and report tbe amount due the plaintiff; and upon bis report, judgment was rendered for tbe plaintiff for $184 68, and costs.

*Wm. M.*Nichols, for appellant.

*Smith & Keyes,*for respondent.

May 15.

*By the*Court,

Cole, J.

We are of tbe opinion that tbe complaint in this case is clearly insufficient to support tbe judgment. By a very free use of language it might be said that tbe complaint embraces two counts or causes of action; although neither count “ contains a plain and concise statement of facts constituting tbe cause of action,” as our system of pleading requires. But still, by a liberal rule of construction, it might be held that tbe cause of action set forth in tbe first count, is for twenty-three dollars and fifty-six cents bad and received by tbe appellant to and for tbe use of the respondent, under tbe circumstances mentioned in tbe complaint. Perhaps this cause of action might support a judgment for tbe amount of money thus alleged to have been received. But tbe second count purports to be for goods, wares and merchandise, amounting to tbe sum of $133 63, received by tbe appellant in bis capacity as wharfin-ger and and warehouseman, which he bad neglected or refused to deliver to tbe respondent. Yet there is no allegation whatever in tbe complaint, that tbe goods belonged to tbe respondent, or that the appellant was under any obligation to deliver them to him. If tbe goods really belonged to tbe respondent, it should have been so averred, in order to show his right to recover their value. Now it is very apparent that tbe judgment is for tbe value of these goods as *18well as for -(fog money bad and received, wbieb is mentioned the first count.

_^s this was a judgment by default, there is no bill of exceptions, and of course we cannot look into what purports to be the testimony taken on the assessment of damages. We can only examine and pass upon the errors apparent upon the record. This we have done, and find that the complaint does not state facts sufficient to support the judgment.

The judgment is therefore reversed.