Groves v. Train

11 Ind. 198

• Court: Indiana Supreme Court
• Decided: December 3, 1858
• Status: Published

Opinion

Davison, J.

George Train, James Mason, and Benjamin Spencer, partners under the name of Train, Mason 8f Co., sued William Groves and Hiram Andrews, upon a promissory note for the payment of 602 dollars. The complaint alleges, in the usual form, that the note was made by the defendants, payable to the plaintiffs, by their copartnership name of Train, Mason Sf Co. Process, as to Groves, was returned not found. Andrews appeared and demurred to the complaint; but the Court overruled his demurrer. This ruling is assigned for error, but no exception appears to have been taken. The question involved in the assignment is not, therefore, properly before us.

M. K. Farrand, for the appellants. J. B. Niles, for the appellees.

The answer contained four paragraphs. The first, was a general denial. The other paragraphs make no point in the case, and, for that reason, will not be further noticed. The issues were submitted to the Court, and the note sued on was the only evidence adduced on the trial. Finding for the plaintiffs. New trial refused, and judgment.

The judgment is said to be erroneous, because there was no evidence tending to prove that the plaintiffs constituted the firm of Train, Mason Sf Co. This position is not tenable. There being no plea, verified by affidavit, in which the averment that they are the payees of the note is denied, it was not incumbent on the plaintiffs, under the pleadings, to prove that they constituted the firm of Train, Mason & Co. Abernathy v. Reeves, 7 Ind. R. 306.

Per Curiam.— The judgment is affirmed, with 8 per cent, damages and costs.