Allen v. Cooley
| Decision Date | 30 July 1898 |
| Citation | 30 S.E. 721,53 S.C. 77 |
| Parties | ALLEN v. COOLEY. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Abbeville county.
Action by K. W. Allen against D. K. Cooley. From a judgment in favor of plaintiff, defendant appealed. Affirmed.
Graydon & Graydon, for appellant.
Parker & McGowan, for respondent.
The plaintiff brought this action on a note of which the following is a copy: The third paragraph of the complaint is as follows: ' The defendant admitted to be true all the allegations contained in said paragraph. For a defense, the defendant alleged that the note was not made and delivered to the plaintiff by the firm of Allen & Cooley, or by the defendant, or by B. Berry Allen, who was the other member of the firm. For a further defense, he alleged that he did not authorize B. Berry Allen, or any one else, to execute and deliver the note to the plaintiff, and that he has not ratified the execution and delivery thereof. For a further defense, he alleged that at the time of the dissolution of said firm, a list of the debts due by Allen & Cooley was made out, but that the said note was not mentioned to him by any one, and that he did not know that the note was claimed to be in existence until several days after the dissolution; that upon its presentation by the plaintiff he refused payment. The jury rendered a verdict in favor of the plaintiff.
The appellant's first exception imputes error as follows: "(1) In admitting in evidence the paper set out in the plaintiff's complaint, the same being irrelevant to the issue made by the pleadings as to whether the defendant was liable to the plaintiff on the note in suit." There are two reasons why this exception cannot be sustained: First. Because, if it was necessary to make B. Berry Allen, the other member of the firm, a party defendant, then there was a defect of parties defendant. This objection should have been interposed by demurrer or answer, and, having failed to do so, the right to insist upon this objection was waived. Second. Because, by the terms of dissolution, the defendant's liability became primary, and he could be sued as an individual. Doty v. Crawford, 39 S.C. 3, 17 S.E. 377; Latimer v. Latimer, 38 S.C. 379, 16 S.E. 995.
The second exception submits that there was error as follows: "(2) In allowing plaintiff's attorney to ask, and the witness B. B. Allen to answer, notwithstanding the objection of defendant, the following question: 'You were doing all you could for Mr. Cooley, then, were you, Mr. Allen?'--the same being irrelevant to any issue raised by the pleadings, and having a tendency to mislead and prejudice the jury." The case shows that the presiding judge made no ruling upon appellant's objection, nor was there a specific ground of objection, nor did appellant's attorneys insist upon a ruling, nor was there a motion to strike out the testimony. This exception is overruled.
The third exception is as follows: "(3) In allowing the witness J. Belton Watson, notwithstanding the objection of the defendant, to make the following answer to a question...
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