10 Kan. 420 | Kan. | 1872
‘The opinion of the court was delivered by
Parker & Tisdale commenced an action .against Charles W. Wiggins, Joseph M. Wiggins, and John J. Wiggins, doing business under the name of C. W. Wiggins & Bros., on an account for money had and received as agents of the plaintiffs. No service is shown on any of the defendants. Joseph M. Wiggins alone answered, setting up, first, .a general denial; second, payment; third, a defense that is called a counterclaim, and which appears by the evidence to have been such in favor of “C. W. Wiggins & Bros.” and ngainst the plaintiffs. This counterclaim is in its terms in
“If the jury find from the evidence that the defendant Joseph M. Wiggins had associated with him as partners in the hotel business Charles W. Wiggins and John J. Wiggins, at the time the board was furnished arid services rendered charged for in the answer and counterclaim filed herein by Joseph M. Wiggins, and that they were interested in the proceeds resulting from the same, and do not find from the testimony that there had been an assignment or sale of the interest of the said Charles W. and John J. Wiggins therein to the said defendant Joseph M. Wiggins, they will then find under the issues joined herein in fevor of the plaintiffs, Parker & Tisdale.”
The refusal to give this instruction is the only error presented in the brief of plaintiffs in error. The third paragraph of the answer setting up the counterclaim seems to us to show upon its face that the claim therein set up is one in favor of the Wiggins Bros. The answer is by carelessness or design very awkwardly worded. It purports by its commencement to be the answer of one defendant, yet it uses the word defendants throughout, with its corresponding plural verb, and concludes in these words, “and he asks judgment for the balance in their favor, with costs.” If we are right in thinking that the counterclaim shows a demand in favor of all the defendants, and it was plead only by one, then the defect of parties appeared upon the face of the answer, and could be taken advantage of by demurrer, and if not so taken advantage of, the defect, under the code, is waived. Code, §§89 and 91. Even if we err in