Christie v. Henley

31 N.E. 579, 5 Ind. App. 59, 1892 Ind. App. LEXIS 186

• Court: Indiana Court of Appeals
• Decided: June 7, 1892
• Docket: No. 483
• Status: Published

Opinion

Robinson, J.

The appellee commenced this action against the appellant before a justice of the peace.

The complaint alleged that on and previous to January 21st, 1888, appellee and appellant were partners in the general merchandise business at the town of Hadley, Indiana ; that on said day appellee sold to the appellant all his right, title and interest in said merchandise for the price and sum of fifteen hundred dollars and interest thereon; that appellant had made divers payments thereon, leaving a balance due the appellee of $142.45; tliat the same had been demanded, etc., and judgment was demanded, etc.

Appellant answered in substance, admitting that he and the appellee had an accounting on the 21st day of January, 1888, and that the sum of fifteen hundred dollars was found due from appellant to appellee, but that at the time of said accounting and the dissolution of the partnership theretofore existing between said parties the accounting was on the basis of the value of the stock in trade, fixtures, bills receivable and bills payable; that it was the custom and duty of the appellee to enter and keep an account of all bills payable; that appellee was the purchasing partner of said firm and had knowledge of its indebtedness; that through mistake, fraud and oversight, appellee had not made a record of certain bills payable of said firm to the amount of $169.56; that appellee, by mistake, fraud and oversight, omitted said indebtedness of said finn, of which appellant was wholly ignorant, thereby making the amount that would be due the appellee the sum of fifteen hundred dollars, which was erroneous and false; that appellant was only to be chargeable with half of the indebtedness of said firm under said agreement for accounting; that on or about the 1st day of December, 1888, appellant notified appellee of said mistake, fraud and oversight, and requested the same to be corrected and the account restated, which appellee failed and refused to do; that on the 12th day of March, 1888, appellant paid appellee twenty dollars, for which credit ewas not given; that upon said omitted bills and interest, in accordance with the agreement of said parties, appellant was entitled to a credit of $104.78 and a further credit for said sum of $20, being more than the balance due the appellee, wherefore appellant demanded judgment, etc. A bill of particulars was filed with the answer.

The cause was tried by the justice of the peace, resulting in a finding and judgment for the ^appellee. The appellant appealed the cause to the circuit court, where there was a. trial by jury, with a verdict and judgment for the appellee.

The appellant filed a motion for a new trial, which was overruled, and the overruling of the same constitutes the assignment of error in this court.

The causes assigned in the motion for a new trial are as follows, viz.:

1. The verdict of the jury was not sustained by sufficient evidence.

2. The assessment of the amount of recovery is erroneous, being too large.

3. That the verdict of the jury was contrary to law.

4. . The court erred in sustaining the motion of the appellee to strike out of the deposition of William P. Henley the following questions and answers thereto on cross-examination, to wit:

Q. “How did you ascertain the indebtedness of the firm of Henley & Christie at the date of the sale of your interest to the defendant ? ”

A. “I ascertained it from the books.”

Q. “Hid you not ascertain the indebtedness of the firm of Henley & Christie from the books of the firm ? ”

A. “ Yes.”

5. The court erred in giving instructions one, two, three, four, five and six on its own motion.

6. The court erred in excluding the following evidence offered by the appellant, to wit: The ledgers of the firm to show that they were kept by the appellee and that they were in his hand-writing.

The third and. sixth causes in the motion for a new trial are waived in argument. The appellant has assigned no reason why the court erred in its rulings on these causes, and does not discuss these causes in the motion for a new trial.

Under the firjpt cause in the motion for a new trial it is alleged that the verdict of the jury was not sustained by sufficient evidence. Ry a careful examination of the evidence it appears that there was a sharp conflict in the evidence. There was evidence tending to sustain the appellee’s complaint and there was also evidence tending to sustain the defence of the appellant. The jury found for the appellee on the theory that the evidence sustained .the allegations in the complaint, and it clearly appears from the record that the evidence tended to sustain the complaint. We can not, therefore, determine the weight of the evidence or decide as to its preponderance, but must sustain the verdict on the ground that the evidence tended to support the verdict. For the same reason there was no error in ovei’ruling the motion for a new trial under the second cause, that “ The assessment of the amount of recovery was erroneous, being too large.” There was no error committed by the court, as is alleged, in the fourth cause in the motion for a new trial. The evidence on cross-examination in the deposition of William P. Henley, which was stricken out by the court on appellee’s motion, was clearly not within the bounds of legitimate cross-examination, and besides, it is apparent from the record that no harm could have possibly re-' suited to the appellant by reason of sustaining said motion.

The remaining contention of the appellant is, that the court erred in giving instructions one, two, three, four, five and six on its own motion. We have examined the instructions, audit is not necessary to set them out in this opinion. When considered as a whole the instructions contained a correct statement of the law and embraced all the issues in the case, and we are unable to see in them any just ground of complaint on the part of the appellant.

Filed June 7, 1892.

The judgment is affirmed.