Reed v. Pixley

Apr 19, 1876
Reporters:
,
Before:
Berrt
Berrt, J.2

This is an action upon an account stated between plaintiffs jointly, on the one hand, and ‍​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌​​‌‌​‌​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌‌​​​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌​​​‌‌‌​‌‌​‌‍defendants jointly on the other. The separate answers of the defendants put in issue the stating of the account. Under this issue it was competent for either defendant to show that the account ‍​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌​​‌‌​‌​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌‌​​​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌​​​‌‌‌​‌‌​‌‍was not stated by him or her; but if the plaintiffs proved the stating of the account by one of the defendants, they were entitled to recover against that one alone under Laws ‍​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌​​‌‌​‌​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌‌​​​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌​​​‌‌‌​‌‌​‌‍1873, ch. 67‘. It follows that the court below erred in instructing the jury, in effect, that, as defendants were *541jointly sued, it was necessary to plaintiffs’ recovery that the accounting should have been ‍​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌​​‌‌​‌​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌‌​​​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌​​​‌‌‌​‌‌​‌‍joint, and not several. As this, instruction was applicable to the issue, it is to be presumed’ that there was evidence in the case to which it was applicable, though it does not ‍​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌​​‌‌​‌​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌‌​​​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌​​​‌‌‌​‌‌​‌‍affirmatively appear what the-evidence was.

Order reversed.

Notes

Cornell, J., having been of counsel, did not sit in this case.