Boulton v. First National Bank

46 Iowa 273

Opinion

Servers, J.

1. evidence: Bookseofae-: count. I. The existence of the partnership and the length of time it continued were material questions. Asevidence to support this theory the defendant offered cei’tain account books of Mitchell & Fletcher which contained charges against “Boulton & Wilkins” for lumber used in the construction of the building on the lots in question. Boulton claimed the partnership had been dissolved. These books were objected to but the objections overruled and they were admitted as evidence. In this there was error. Who made the entries was not shown or that either Bonlton or Wilkins knew the lumber was so charged. Boulton testified that he purchased the lumber and paid for it, but that he did not know the lumber was charged to Bonlton & Wilkins, and it was also insisted the evidence was admissible for the purpose of contradicting him. In this view we do not concur. If it had been shown that Boulton had directed the lumber to be so charged, the case would have presen ted different features. The book, we think, was clearly inadmissible for any purpose: McNamara v. Dratt, 40 Iowa, 413.

II. It is not shown by the abstract that all the evidence is before ns. If, therefore, this cause be triable de novo, about which, to say the least, there is great doubt, it would be improper for us to express a definite opinion on the merits of this controversy. We deem it, however, proper to say if the legal or equitable title belonged to Boulton & Wilkins at the time tho judgment was rendered, the defendant can only reach and have applied in satisfaction of his judgment whatever interest Wilkins had therein. Whether this can be done by a sale of the partnership property without an adjustment of the accounts between the parties, or whether the appropriate relief can be granted under the present pleadings, is for counsel to determine.

Bevbrsed.