#### Hill Lumber Company, Appellant, v. James G. McLean et al., Appellees.

This case is controlled by the decision in Lehigh Portland Cement Co. v. McLean et al., ante, p. 360.

Assumpsit. Appeal from the Circuit Court of Richland county; the Hon. Enoch E. Newlin, Judge, presiding.

Heard in this court at the February term, 1909.

Reversed and remanded.

Opinion filed June 15, 1909.

J. C. Ritter, for appellant.

H. G. Morris, for appellees.

Mr. Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit, in the Circuit Court of Bichland county, by appellant against appellees.

The declaration consisted of one special count, and the common counts. To this declaration appellees filed a demurrer; the court sustained the demurrer; appellant excepted and elected to stand by its declaration; and the court thereupon rendered judgment in favor of appellees against appellant in bar of its action and for costs. Appellant duly excepted, and has perfected its appeal to this court.

We do not deem it necessary to discuss, here, the questions sought to be raised on the demurrer with respect to the special count, further than to say that we are of opinion that they do not properly arise on demurrer. The same questions are presented by appellees herein, by a plea, in the case of The Lehigh Portland Cement Company v. James G. McLean and Ella McLean, Partners, etc., ante, p. 360. They will be discussed at some length in that case.

The common counts are wholly complete, both in substance and in form, and fully state a good cause of action in favor of appellant. against appellees. The Circuit Court erred in sustaining appellee’s demurrer *369to appellant’s declaration and in rendering judgment against appellant in bar of its action and for costs.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.