Green v. Witte
| Decision Date | 25 October 1892 |
| Docket Number | 558 |
| Citation | 32 N.E. 214,5 Ind.App. 343 |
| Parties | GREEN v. WITTE ET AL |
| Court | Indiana Appellate Court |
From the Hancock Circuit Court.
Judgment reversed.
S. E Urmston, H. Warrum, E. Marsh and W. W. Cook, for appellant.
J. W Kern, L. O. Bailey and E. W. Little, for appellees.
Action commenced before a justice of the peace on a partnership account alleged to be due the appellees from the appellant. The first error assigned is that the complaint does not state facts sufficient to constitute a cause of action. The complaint did not, in the caption or body, set out the names of the members of the firm, but used the firm name, Fred W Witte & Co. There was no demurrer to the complaint nor motion in arrest of judgment. When the cause reached the circuit court it was docketed by setting out the full name of each member of the firm as plaintiff, and thus the names appear in all subsequent proceedings. We think the technical omission in the complaint was thus cured. Hellyer v. Bowser, 76 Ind. 35.
The next error relied upon is the overruling of the appellant's motion for a new trial. Appellee Witte testified that when his partner, Weise, purchased an interest in the mill, which they operated together, he also sold to Weise a half interest in the book accounts, including that due from the appellant. It was subsequently disclosed that the contract of partnership, including the transfer of the accounts, was in writing. The appellant thereupon moved that the testimony in reference to the transfer of an interest in the account by Witte to Weise be stricken out, the contract itself being the best evidence. The court overruled the motion, and counsel insist that this ruling was erroneous.
There was no answer questioning the assignment of an interest in the account to Weise. The testimony complained of had reference to the question as to who constituted the members of the firm, and who were interested in the account, rather than to the assignment or the manner of the same. No attempt was made to prove the contents of the written contract alluded to.
But aside from that, we do not regard it as necessary that the assignment should have been averred or proved. It was a question in which the appellant was not concerned, except in so far as to protect himself against another suit by some assignee not a party to the record. But as the only assignee was a party plaintiff, he would of course be bound by the judgment, and no future action by him would lie. It was not necessary, therefore, that the contract should have been introduced to show a transfer of interest to Weise, and what Witte said could not have harmed the appellant.
The court instructed the jury that it was alleged that a half interest in the account had been assigned to Weise, when in fact there was no such allegation in the complaint. There could have been no harm in this statement. It is true the complaint did not contain such an averment, and the instruction was, strictly speaking, not correct. But an instruction will not operate as a reversal, even though it be incorrect, unless it may be harmful to the complaining party. There was no necessity for such an averment in the complaint. If there was harm in the instruction, it was to the appellees, and not to the appellant. It, in effect, tended to cast upon them the burden of proving a fact not in issue, but that is something of which the appellant can not complain. It required no additional evidence on her part.
Appellant also assails the third instruction. In...
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