16 Neb. 481 | Neb. | 1884
This action was brought by Mullen against Clark for goods alleged to have been sold to said Clark'and one Hayter, as partners, on and before the 14th day of September, 1878, and, at their request, delivered to Peter Frederick and another; that afterwards said Clark and Hayter dissolved partnership, Clark assuming the debt due for
It will be observed that Mr. Clark does not plead payment in his answer, but denies the facts as to the sale and delivery of the goods. Payment must be pleaded, and is-not admissible in evidence without such plea. Baker v. Kistler, 13 Ind., 63. McKyring v. Bull, 16 N. Y., 297. Texier v. Gouin, 5 Duer, 389. Seward v. Torrence, 5 N. Y. Sup. Ct., 323. Edson v. Dillaye, 8 How. Pr., 273. Bliss on Code Pleading, § 358. Abbott’s Tr. Ev., 798. As there is no plea of payment the testimony of the witnesses named, if obtained, would have been inadmissible-under the pleadings. There was no error therefore in. overruling the motion for a continuance.
Some objection is made to the instructions, but as the-evidence is not preserved in the record it is impossible to-determine whether the instructions complained of are erroneous or not.
There is no error in the record and the judgment is-affirmed.
Judgment affirmed.