69 Ky. 97 | Ky. Ct. App. | 1869
delivered the opinion of the court.
Near the close of the late civil war Thompson Gossom, Cornelius Jenkins, and John C. Jenkins, of Warren County, to avoid being, coerced into the military service of the United States under a draft then about being enforced, through said Gossom engaged H. M. Garret, a “substitute broker” at Louisville, to furnish and procure to he accepted a substitute for each of them for the sum of one thousand dollars; and in pursuance of their arrangement with Garret they placed one thousand dollars each in the hands of W. H. Newman, of Louisville, to he paid to Garret for them respectively, upon his complying with his agreement.
“March 11, 1865.
“Mr. ¥m. H. Newman, you will please pay to Jas. R. Badgett or order one thousand dollars, to pay for a substitute put in by him at Bowling Green, Kentucky.
John C. Jenkins, ■ Sarah Jenkins.”
Newman, having already paid the money to Garret upon notice that he had furnished a substitute for Jenkins, refused to pay the order, which, on presentation, was protested.
In January, 1866, Badgett instituted this suit against said John C. Jenkins and Sarah Jenkins as the drawers of said order. But by an amended petition, filed in August, 1866, said Gossom was joined as a defendant, and the plaintiff set forth a joint-undertaking by Gossom and J. C. Jenkins to pay him said sum of one thousand dollars in consideration of his furnishing said substitute for Jenkins.
The defendants filed separate answers: J. C. Jenkins
A jury having been sworn to try the issues, and having-heard the evidence for the plaintiff, were, oh motion of John C. and Sarah Jenkins, directed to find a verdict as to them, and thereupon a verdict was returned for said John C. and Sarah Jenkins; and the trial progressed as to Gossom, and resulted in a judgment against him for one thousand dollars. And the court having rendered a judgment in conformity to these verdicts and refused to grant a new trial, Gossom prosecutes this appeal.
Although the evidence conduced to establish a separate liability of the appellant to the plaintiff', it does not appear that the joint-undertaking alleged to have been made by the appellant and Jenkins was so proved that a joint-verdict thereon could have been sustained. No motion was made during the trial to amend the petition so as to conform the pleading to the evidence, nor was there any objection to the evidence by the defense .on the ground that it was not applicable to any issue formed by the pleadings. But the question was raised by objections of the defendant to instructions which were given, and by the motion for a new trial, whether the verdict, though in conformity to the weight of evidence, was sustained under the issue; or, in other words, whether there was not a failure of proof to support the cause of action alleged in the petition; and that question is now presented for the decision of this court.
It may be premised that although, before the adoption of the Civil Code, several actions could not be maintained
As there was no objection to the evidence, nor any complaint that the defendant was misled by the variance between the evidence and the pleading, the discrepancy is not a ground of reversal in this court, unless it should be deemed a failure of proof within the meaning of' said section 158 of the Code. It is essential therefore to ascertain from the reasons for distinguishing between joint and several demands founded on the same consideration, whether the substantial rights of the parties require that they ..should be treated as different causes of action.
In the case of Brown v. Warner, 2 J. J. Marshall, 37, in which, upon a joint demand, a recovery was had against one of two defendants, this court held that “ the contract
The action of the court is complained of on several other grounds; but, except so far as it was inconsistent with the views we have expressed, no valid objection to it is perceived.
Wherefore the judgment is reversed, and the cause remanded for a new trial, with directions to allow the parties to amend their pleadings.