88 Ind. 118 | Ind. | 1882
— In her complaint in this action, the appellee, the plaintiff below, alleged in substance, that on the 27th day of May, 1881, the appellants, Henry H. Lassiter and Nathan Hammond, became indebted to Lyman H. Jackman by bal
Immediately following the complaint, in the transcript, is a writing of which we give a copy, prefaced with the words, ■“ Bill of Particulars ” :
“Huntington, Ind., July 26th, 1881.
"“ Nathan Hammond and Henry H. Lassiter to Lyman H.
Jackman, dr.:
“ May 17th, 1881, to balance on settlement . . . .$90.00
“May, 1881. — For value received, I hereby assign the within account to Sarah F. Jackman.”
[Signed] “ Lyman H. Jackman.”
The cause was put at issue and tried by a jury, and a general verdict was returned for the appellee in the sum of $90; -and the court rendered judgment on such general verdict.
The following errors have been assigned by the appellants:
1. In overruling their motion for a judgment in their favor on the special findings of the jury, notwithstanding the general verdict.
2. Appellee’s complaint does not state facts sufficient to constitute a cause of action.
3. The court erred in overruling appellants’ motion for a new trial.
In their brief of this cause the appellants’ counsel concede, as we understand them, that “ a fair interpretation of the whole •complaint shows that it is a complaint on an assigned account.” 'There was no demurrer below to the complaint, and its sufficiency is called in question for the first time, after verdict and judgment thereon, by the assignment here as error that
But it is said by the appellants’ counsel, that the assignment of the account was not proved. It was not put in issue by a pleading under oath, and, therefore, it was unnecessary that the assignment should be formally proved. There was evidence tending to prove that the debt sued for -had been transferred to the appellee, and that the appellants had agreed to-pay the debt to her, before she commenced her suit. This was sufficient evidence on that point to sustain the verdict. But counsel say, also, that the evidence fails to show that the
The appellants’ counsel also claim that because the evidence showed that the appellee’s assignor, Lyman H. Jackman, and the appellants had been co-partners in a mining business, in the State of California, and that the business of such co-partnership had never been finally settled, therefore the appellee could not recover the indebtedness sued for in this action. This conclusion does not necessarily follow, by any means,, from the premises stated. Ordinarily, no doubt, a member of a firm can not assert a claim against his co-partners for his services as such partner; but circumstances may imply an agreement, or there may be, as in this case, an express agreement on'the part of his co-partners, to pay him for such services. In such a case we know of no rule of law which would prevent, a recovery by him, or his assignee. Lee v. Davis, 70 Ind. 464.
In section 547, R. S. 1881, it is provided that “ When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” In the case at bar there was no' such inconsistency, we think, between the special findings of fact and the general verdict, as authorized or required the court to give judgment on the special findings of fact in favor of the appellants, notwithstanding the general verdict against them. This court will not presume anything in aid of the special findings of fact, but, on the contrary, will indulge every reasonable presumption in favor of the general verdict. Ridgeway v. Dearinger, 42 Ind. 157; McCallister v. Mount, 73 Ind. 559; Cook v. Howe, 77 Ind. 442.
We have found no error in the record of this cause which requires us to reverse the judgment below.
The judgment is affirmed, with costs.