19 Ind. 169 | Ind. | 1862
Booth § Co.» sued Wonderly and Smith, on an account assigned to them by Howard &¡ Howard. Answer Denial and payment. Reply: Denial. Trial. Judgment against Wonderly and Smith, for eighty-six dollars, and against Smith for, etc.
It was shown, in proof, that while Smith was dealing with the Howards, Wonderly notified them that he would see them paid, etc.
The whole account, as is shown, was presented to Smith, and its correctness admitted by him. With the exception of a few items of small amount, this was all the evidence as to the sale or value of the goods, which consisted of many items.
' One witness testified, that he “prepared a contract between Smith and Wonderly, by which Wonderly agreed to keep Smith in stock as a blacksmith.” There were also, in evidence, the admissions of Wonderly, that he was liable for the goods got by Smith after a certain date, if he got any. Wonderly was a witness, and was not asked as to whether there was a partnership. One of the Howards was a witness, but said nothing as to the fact of the goods having been, sold, or their value.
There was no other evidence showing a unity of, or joint interest between, Smith and Wonderly. Was there enough
Although it is held that, in the absence of fraud, if parties have a joint interest, an admission made by one will, in general, bind all (1 G-r. Ev., sec. 174); yet we can not perceive the applicability of this principle to the facts proved. The proof of the fact, that the defendant, Wonderly, was to keep his co-defendant in stock, is readily reconcilable with terms of a contract other than a partnership. Story on Part., sec. 43. What the terms of the contract were is not disclosed. If there was not a joint interest, the credit should have been given to Wonderly alone, to have made him liable, unless he was liable in the character of a guarantor.
The judgment is reversed, with costs. Cause remanded for another trial.