Lead Opinion
Kramer sued Ehrman upon an account for goods sold, and for money paid;demand, $2,500. This suit was commenced in April, 1866.
The defendant, Ehrman, answered in three paragraphs. 1. To the effect that in October, 1860, one Tibbitts entered into two separate contracts with tho city of Evansville, one for $3,182.50, tho other for $2,344, to grade, pave and macadamize Main street, in said city, from a certain alley to Eighth street, and that, to secure the performance of said contract, he made two different bonds to the city, with Kramer and Ehrman as his sureties; that said contracts were afterwards assigned to said Ehrman, with tho knowledge and consent of Kramer, and also of the city, who accepted and ratified the assignment on the IGtlr day of November, 1860; that soon after the said contract wras made and tho work began by Tibbitts, Kramer and Ehrman, learning that. Tibbitts had neither the capital nor tho energy to carry on the w'ork, to save themselves from loss, agreed that Ehrman should become nominal contractor for said work, and Kramer surety, and that they together would finish the same with their joint labor and means, and share
2. General denial.
3. A general plea of payment.
The plaintiff filed a reply in denial of the allegations of the answer. A trial resulted in a finding for the appellee of twelve hundred dollars.
Motion for a new trial, assigning three reasons. 1. That
There are two .bills of exceptions in this record, designated by the clerk No. 1 and No. 2. The first contains an exception to the decision of the judge on the trial, in ruling out a receipt offered in evidence by the defendant. The question raised by appellant upon that ruling will be best shown by copying a portion of the bill of exceptions, as follows:—
“ The plaintiff, having been sworn as a witness, swore to the payment of eighty dollars to one John Haffey, on account of the work specified in the pleadings, and the defendant being afterwards sworn as a witness, on being interrogated in reference to the payment of said sum of eighty ■dollars by the plaintiff, testified that the plaintiff had so paid the sum of eighty dollars, and that he, the defendant, at the same time, paid the said Haffey the sum of one hundred dollars on the same account. The defendant, at the same time, produced a receipt in writing, of which the following is a copy:
“‘$180.00. Evansville, January 12th, 1861.
“ ‘ Received of E. J. Ehrman and Philip Kramer one hundred and eighty dollars, on account for rock.
“‘John Haeeey.’
“And the defendant then further testified that the said payment was made at the grocery of the plaintiff’, in Evansville, on the day the receipt is dated; that at the time of the said payment, the three — plaintiff, defendant and Haffey — were all present, and that at the same time defendant drew up the receipt and the said Haffey signed it, in presence of the plaintiff' and defendant, and that the signature was in the handwriting of said Haffey. The defendant, by counsel, then offered the receipt in evidence in behalf of the defendant, and proposed to read the same to the jury,
Appellant assigns for error: — 1. That the judgment is for a larger amount than was proved by the evidence of appellee. 2. The ruling out the receipt offered in evidence by appellant. 3. The refusal by the Circuit Court to grant appellant a new trial. 4. That the verdict is not sustained by the evidence.
It will be observed that the motion for a new trial does not present the question which the appellant has stated in his first assignment of error. Spurrier v. Briggs, 17 Ind. 529.
The issue between the parties was, whether a partnership existed between them, or whether Kramer was simply a surety, and, as such, advancing money to enable Ehrman to comply with his contract. The receipt offered in evidence could not, in any way, aid the jury to determine this issue. But the evidence offered does not show that Kramer had any knowledge of the contents of the receipt: It was not taken by him, nor does it appe'ar that it was ever in 'his possession. Ilis presence in the room certainly does not charge' him with knowledge of the contents of the receipt.
We cannot disturb the finding on the ground that the verdict is not sustained by the evidence. We have no hesitation in saying that, as the evidence appears in the record, the weight is in favor of the appellant, and if the witnesses had seemed of equal credit, there should have been no reluctance in granting a new trial. But we cannot, from the record, determine the weight to be given to the evidence of the witnesses. That responsibility rests with the judge who tries the case, and it is his duty to exercise far more freedom in regard to the verdict of the jury than we can do, looking only to the written testimony.
The judgment is affirmed, with costs.
Rehearing
ON PETITION EOR A REHEARING.
There has been an earnest petition for rehearing filed in this case that seems to require more than a silent notice.
The question is fully stated in the opinion pronounced by Judge Ray. The only complaint that can be made, with any degree of plausibility, is to the conclusions drawn from the facts, which are fairly stated. The receipt was offered in evidence against Kramer. The question in dispute was, whether Kramer advanced money as the surety of Ehrman, or as partner. Eighty dollars included in the receipt was paid by Kramer, and one hundred dollars, the residue, was paid by Ehrman. The fact that a joint receipt was taken for the aggregate of the two sums would, of itself, be a circumstance tending very slightly to prove the fact in dispute, even had the receipt been taken by Kramer himself. But it could only be admitted against him on the ground that it was an act of his, orto which he was privy, amounting to a verbal admission by him. Was it such an act? The receipt was written by Ehrman. The mere presence of Kramer is the only thing to connect him in any way with it. It was taken and kept by Ehrman, and by him produced on the trial. If evidence at all, it was evidence manufactured by himself. To make Kramer privy to the form of the receipt — and that is the only thing that had any bearing — it seems to us that something more than his presence was necessary. There must have been proof of some circumstance tending to show actual knowledge of its contents. In the language of Mr. Starkie, “in general, it would be contrary to the first and most obvious principles of justice, that any one should be bound by the acts, or concluded by the declarations or assertions of others to which he w'as nowise privy.” 1 Starkie on Ev. 51.
The petition for rehearing is overruled.