Starr v. HuntStarr v. Hunt
- Reporters:
- Before:
- Frazer
The appellants, who were the defendants below, on the trial offered оne of themselves as a witness, the record informs us, “ to prove the various allegations of their joint and separate answers, and disprove those оf the plaintiffs’ complaint, but the court held that there was no issue raised by the pleadings upon which his testimony could bo received, and thereupon exсluded him.” This ruling is questioned here.
The suit was upon two promissory notes, and an acсount stated. One of the notes was made by the defendants, Alonzo Starr, John Pees and Mansfield Starr, the other, by Starr, Pees Starr. Both were payable to A. Starr Co., and indorsed by the payees in blank.
There was a joint аnswer by the defendants in three paragraphs: 1. A general denial to the wholе complaint. 2 and 3. That the notes were not owned by the plaintiffs, but by A. Starr $ Co., a firm composed of the plaintiffs and the defendant, Alonzo Starr.
Pees answered sеparately: 1. To the first paragraph of the complaint, that, in the notе mentioned therein, he and Mansfield Starr were sureties, and Alonzo Starr was principal. 2. To the second paragraph, that at the execution of the note mentioned therein, he was not a member *315of the firm of Starr, Sees £ Starr; that that co-partnership had been dissolved four years beforе, of which the payees had notice; that the note was executed by Alonzo Starr without consideration, and without the knowledge, or consent of Sees^ 3. That he did not execute the note mentioned in the second paragraph of the cоmplaint. No part of his answer was sworn to.
Alonzo Starr answered separately. 1. That thе note mentioned in the first paragraph of the complaint was the joint property of himself and the plaintiffs. 2. The same answer as to the note mentiоned in the second paragraph of the complaint. The reply was а general denial.
There was a special finding for the plaintiffs for the amount of the two notes; and that, as to the one mentioned in the first paragraph of the complaint, Sees and Mansfield Starr were sureties. . The proper judgment was rendered upon the finding, over an unsuccessful motion for a new trial. The evidence is not in thе record.
It is manifest that there were issues made by the pleadings upon which evidence for the defendant might have been admissible. The paragraph upon an account stated was controverted by a general denial. The suretyship of two of the defendants, pleaded as to one of the notеs, was denied by the plaintiffs. But, inasmuch as these issues were found for the defendants, аs to them the error, if any, was harmless, and therefore, not available herе.
The second paragraph of Sees’s separate answer, though double, and altogether a pleading very unрrofessionally framed, must nevertheless be deemed sufficient, as alleging the want of any consideration for the note which it mentions. The burden of that issue was uрon Sees, and he had a right to maintain it by evidence. Shank v. Fleming, 9 Ind. 189; Messmore v. Vanpelt, 15 id. 138. The evidence ought, therefore, to have been admitted. But Sees only pleaded a want of consideration, and inasmuch as the other defendants hаd not, we think, any answer in under which the evidence1 was admissible, and on accоunt of the refusal *316of which, the case could be reversed, and as they were not injured by the finding for the plaintiffs of the issues made upon Rees’ separate answеrs, it follows that there can be no reversal of the judgment rendered against thеm. It remains then only to inquire whether it can be reversed as to Rees alone.
It is argued that he shоuld have stated more definitely the evidence proposed to be offered. Ordinarily this might be so. But why so in this case, when the court had determined that no evidence was admissible in his behalf under the issues ? To have then offered evidencе, particularly stated, would have been to wrestle with the decision already made by the court, and would, as Rees had a right to assume, have but called for a rеpetition of the decision already made. A rule requiring such contemptuоus persistence by a party, in order to get the point upon the record, would be a technical absurdity.
The judgment against Rees is reversed with costs, and as to him the cause is remanded for a new trial. As to the other appellants, the judgment is affirmed, with one per eent. damages and costs.