130 P. 133 | Okla. | 1913
The plaintiff and the defendant were partners in the grocery business. The plaintiff sold his interest *37 to the defendant, and this suit was brought to recover the purchase price agreed upon. The defendant admitted the purchase, and the issue tried was the terms and conditions of the sale. The actual merchandise invoiced about $1,400, and the amount which the plaintiff sued for was exactly one-half of the invoice, the plaintiff claiming that the defendant had agreed to pay him that amount for his interest in the business. The defendant admitted the purchase for that amount, but claimed that the agreement was that the defendant should collect the accounts receivable and pay the accounts payable, and give the plaintiff the benefit of any surplus or charge him with the burden of any deficit. The plaintiff at the time of the dissolution had overdrawn his account about $1,400, while the defendant's account was overdrawn only about $700, leaving a balance in favor of the defendant. Various other items were also involved which it is unnecessary at this time to consider. The court gave to the jury the following instruction:
"If you believe from the evidence that the amount of indebtedness of plaintiff and defendant, respectively, were known to the plaintiff and the defendant, or could have been ascertained, in the absence of fraud or concealment on the part of either, by an examination of the books of the firm at the time of the sale, then you are instructed that said accounts were merged in the sale of the plaintiff's interest in the partnership business to the defendant, and that defendant is not entitled to any credit or offset in this action for the difference between his and plaintiff's accounts, if you find there was a difference."
This instruction took from the jury the power to determine whether or not under the agreement of the parties the plaintiff would remain liable for his account, and compelled them as matter of law to disregard this item. The contract of the parties was not reduced to writing, and the evidence is not satisfactory as to what it really was. The testimony being conflicting, and there being facts and circumstances in the case tending to support the theories of both parties, the whole issue should have been submitted to the jury. If, as claimed by the defendant, he was entitled to collect the accounts and apply them on the bills *38 payable, he might have had a right to collect the accounts due by the plaintiff. There is evidence, at all events, tending to support this claim, and the court should not have taken this issue from the jury.
But it is claimed that there was no sufficient exception reserved to this instruction, and therefore we cannot consider it. The case-made contains the instructions of the court in full. Immediately following the instructions the following appears: "Comes now the defendant and excepts to all that part of the court's charge contained in paragraph 2." Is this a sufficient exception? In Eisminger v. Beman,
The judgment of the trial court should be reversed, and the cause remanded.
By the Court: It is so ordered. *39
