42 Neb. 15 | Neb. | 1894
Ambrose M. Lord instituted suit in the district court of Madison county against George F. Peaks, alleging in his petition that on or about February 15, 1885, the parties to the action formed a copartnership for the purpose of
We will first notice the objection to any evidence being introduced under the pleadings, and motion for judgment for Peaks, because no reply had been filed denying the-matter set up in the fourth paragraph of the answer. To state it in the strongest terms, this was merely affirmative matter, which amounted to no more than a denial of the cause of action stated in Lord’s petition. Lord’s action was predicated in part on the promise by Peaks to pay the debt to Spies. The allegation of the answer simply denied this, and stated that Lord had assumed and agreed to pay the Spies account. If on the trial there had been a finding in favor of Peaks he would have been entitled to no affirmative relief; nothing more than a general finding in his favor, a failure of Lord’s cause of action, hence the answer did not require a reply and the court did not err in overruling the objection and motion. (See Kavalier v. Machula, 41 N. W. Rep. [Ia.], 590; Jordan v. Buschmeyer, 10 S. W. Rep. [Mo.], 616; Maxwell, Code Pleading, 558, and cases cited.)
Paragraph No. 10 of the petition in error is as follows: “The court erred in permitting the plaintiff to show, upon cross-examination of the plaintiff in error, that the matters in controversy were submitted to arbitration, or to a referee, prior to the signing the articles of dissolution. (See page 27, bill of exceptions.)” By examination of page 27 of the bill of exceptions we find the following in regard to the subject referred to in the paragraph quoted:
Q. Isn’t it a fact this matter was submitted at one time to arbitration, or to a referee, prior to this time?
Objected to by the defendant, as incompetent, irrelevant, and immaterial, and not proper cross-examination. Overruled by the court, to which defendant excepts.
Q. Now I will ask you if this matter wasn’t referred to a referee at one time?
A. What matter?
Q. This matter of the question as to how much interest you had in the business and how much interest Mr. Lord had in the business.
A. Certain questions were submitted to a referee for decision.
Q. Now, you may state if you didn’t make a statement to that referee of the assets and things of that kind; have a showing of the assets of the business that was made by you. You may examine this, marked “Exhibit E,” and state if that was a statement which was submitted to the referee.
A. It bears my signature. It must be so.
Q,. You may state from that, Mr. Peaks, as to how much the agreed assets of the firm were at that time.
' It will be noticed that the first question asked, and- to which objection was interposed and overruled, was not answered; that the next objection which was made to any of the testimony was sustained. Clearly there is nothing in this of which the plaintiff in error can complain.
Assignments numbered 5 and 9 are as follows:
“5. The court erred in admitting any oral testimony in reference to the dissolution and settlement of the firm affairs, the same having been reduced to writing and signed by the members of the firm.”
1 “ 9. The court erred in admitting any evidence of the witnesses Lord and Burr tending to prove that the parties to this action, prior to the making of the written articles of dissolution and settlement, made a different settlement.”
There was introduced in evidence an agreement signed by the parties to this action, which we copy:
“ The copartnership heretofore existing between Geo. F. Peaks and Ambrose M. Lord under the firm name of Geo. F. Peaks & Co., with offices and yards at Battle Creek, Nebraska, and Burnett, Nebraska, was dissolved on the 30th day of September, 1889. George F. Peaks assumes payment of all accounts, notes, and taxes of the Battle Creek yard, and will retain as his individual property the real estate and buildings of the firm at Battle Creek, and will own and is empowered to collect all accounts and notes due the said Battle Creek yard, together with the following notes due the Burnett yard, and which are indorsed by A. M. Lord, to-wit: [Then followed an itemized list of notes aggregating $970.74.] Ambrose M. Lord assumes payment of all accounts, notes, and taxes of the Burnett yard and will retain as his individual property the real estate, buildings, stock in trade and personal property of the firm at Burnett, Nebraska, and will own and is empowered to collect all accounts and notes due the said Burnett yard,*21 except the notes before mentioned as transferred to Geo. F. Peaks.
“Given under our hands and seals at Burnett, Nebraska,' this second day of November, A. D. 1889.
“Geo. F. Peaks, [seal.]
“A. M. Lord. [seal.]”
It is strenuously insisted by counsel for Peaks that this writing contained all the contract between the parties and that no evidence could be received to change, vary, or modify its terms. There was testimony admitted to show that the Spies account was included in the Battle Creek account and assumed and to be paid by Peaks, and that it was so included at his request and demand before he would sign the above agreement. There were also admitted some short statements of assets and liabilities of the two lumber yards as compiled from the books of account, and which were shown to be agreed to as correct by the parties before attaching their signatures to the contract of dissolution. Counsel for Peaks objected to all this testimony, but the court admitted it over the objection. This is the action of which complaint is made in the last mentioned allegations of error, and it is argued by counsel that this testimony should not have been admitted, because it contradicted or modified the terms of the agreement in writing, under and by which the firm was dissolved. The articles referred to, it will be remembered, stated that “George F. Peaks assumed payment of all accounts, notes, and taxes of the-Battle Creek yard,” and contained no list or statement of these accounts which were charges against the particular yard designated. It appears to us very clear that the above language suggests a reference to the books of account or an agreed statement of what should compose or be considered the items of account chargeable and to be charged to the business at Battle Creek, as the only source of knowledge or information from which any light could be obtained regarding such items of charge, in any controversy
, The next statements of the petition in error which we will consider are two in which complaint is made that answers to two questions were made by one of the witnesses in which he volunteered, or gave, some testimony which was not called for by, and not responsive to, the interrogatories propounded, and that the court erred in overruling the motion of counsel to strike it out. The matter contained in these answers was not responsive to the questions then asked, and the rules of strictly correct practice may have demanded that it be stricken from the record; but it was of the same class of testimony as we have hereinbefore held to be competent, and we cannot believe that the jury was misled by it or the rights of the complaining party prejudiced by leaving it stand as a part of the testimony; hence, if error, it was not prejudicial.
There are some assignments of error which are not referred to in the brief of plaintiff in error, and in accordance with the established rule of this court these will be deemed waived and not further noticed.
. The only other error alleged in the petition is that the verdict is not sustained by sufficient evidence. The evidence was conflicting on the main issue involved, but we think fully sufficient to support the verdict rendered. It follows that the judgment of the district court is
Affirmed.