Jones v. Austin

• Decision Date: 26 March 1901
• Docket Number: 3,419
• Parties: JONES ET AL. v. AUSTIN
• Court: Indiana Appellate Court

59 N.E. 1082

26 Ind.App. 399

JONES ET AL. v. AUSTIN

No. 3,419

Court of Appeals of Indiana

March 26, 1901

From the De Kalb Circuit Court.

Affirmed.

P. V Hoffman and D. M. Link, for appellants.

J. E Rose, J. H. Rose and T. S. Wickwire, for appellee.

OPINION

BLACK, J.

This was an action upon an account for goods sold and delivered in July and August, 1897, by the appellants to the appellee Lettie Austin, and Callie R. Brenner, doing business under the firm name of Austin & Brenner. The appellee answered by general denial, and by a special paragraph alleging payment. There was also in the answer of the appellee a third paragraph, a demurrer to which was overruled. In this paragraph the appellee admitted that she and her codefendant were partners doing business under said firm name; and it was alleged that the assets of the firm consisted of a stock of dry goods and general merchandise of the value of $ 7,500 and a large number of accounts and bills receivable due to the firm of the value of $ 2,500; that on the 5th of October, 1897, the firm, by mutual agreement of the parties, dissolved; that the appellee sold to said Callie R. Brenner the undivided one-half of all the assets and property of the firm, and in consideration thereof said Brenner agreed to pay the indebtedness of the firm to the appellants, and the appellants, as a further consideration for said sale, agreed to accept said Brenner as their sole debtor upon the indebtedness sued on herein, and to discharge the appellee from all liability thereon; that thereafter, and prior to the institution of this suit, the appellants, in accordance with their said agreement so to do, accepted said Brenner as their sole debtor upon the claim sued on herein, and released and discharged the appellee from all liability thereon.

It is objected on behalf of the appellants that this paragraph of answer does not show a consideration for the agreement to release the appellee. It is quite elementary that a consideration for a promise may be something merely detrimental to the promisee; it need not be a giving of something by the promisee to the promisor, but may be a giving of something by the promisee to a third person, or some injury, loss, or inconvenience to the promisee. Here it is shown that a part of the inducement for the sale made by the appellee to her partner was the promise and agreement of the appellants to accept the partner as the sole debtor, and to release the appellee. The sale and transfer constituted a sufficient consideration for such promise and agreement of the appellants. Starr v. Earle, 43 Ind. 478; Hunt v. Dederick, 105 Ind. 555, 5 N.E. 710; Selz, etc., Co. v. Mayer, 151 Ind. 422, 51 N.E. 485. Possibly the pleading might have been made more definite on motion.

There was a general verdict in favor of the appellants against the defendant Brenner, and in favor of the appellee; and the jury returned answers to interrogatories. The appellants moved for judgment in their favor against both defendants upon the answers to interrogatories, notwithstanding the general verdict; the court sustained the motion as to the defendant Brenner, and overruled it as to the appellee.

There is obscurity in the special findings and seeming want of agreement of some of them with others. Such defects are to be given influence, not against the general verdict, but in its favor. The general verdict for the appellee must be treated as comprehending within itself the finding of the jury in her favor of facts necessary to the establishment of any one of her well pleaded defenses. Even if the special findings should be regarded as inconsistent with one of a number of defenses pleaded, this would not of itself render the special findings irreconcilable with the general verdict, which might still be based upon evidence sufficient to support another defense pleaded. If it be true that the special findings and the general verdict itself are inconsistent with the defense of payment and with the appellee's answer of general denial, it does not therefore follow that the defense pleaded in the third paragraph of the appellee's answer was not established. The general verdict, of course, needs no support from the special findings, and if it does not clearly appear from the answers to interrogatories that the agreement of the appellants to release the appellee was made at or prior to the appellee's sale and transfer to her partner, this can not militate against the general verdict, and the silence or indefiniteness of the special findings as to the time when the agreement to release the appellee was made can not avail the appellants, who for the overthrow of the general verdict must be able to point to some special finding which can not be construed as in harmony with the general verdict. Such inconsistency has not been pointed out. One of the special findings is to the effect that the indebtedness of the firm of Austin & Brenner to the appellants was fully paid prior to a date anterior to the commencement of the action. If this be inconsistent with other special findings and with the verdict against the defendant Brenner, who is not complaining here, it would not have been consistent with the special findings to render judgment against the appellee.

The motion of the appellants for a new trial was overruled. The court upon its own motion gave the jury instructions, and also gave instructions requested by the appellants and instructions asked by the appellee. It is contended that the court erred in giving each of the instructions given upon the appellee's request.

The evidence is not in the record, and instructions given may not be held erroneous if proper under any evidence admissible under the issues. The appellants in the presentation of objections to those instructions in argument have scarcely complied with the rules of this court relating to briefs. Yet we have examined the instructions with care. Some of them related to the right of one member of a firm to pay his individual debt with partnership funds, without the consent of his partners, and to the effect of payments by one member of a firm with partnership funds to his individual creditor who was also a partnership creditor. These instructions are objected to upon the ground that they were not relevant to the issues. They were relevant to the issue of payment of the partnership debt, to which issue it would be necessary to refer some of the instructions concerning the same subjects given at the request of the appellants.

The instructions now under observation are referred to in a group, and not separately by the appellants in their brief, where there is no statement, succinct or otherwise, of the substance of these instructions, or any of them.

That the question as to the proper application of payments, out of the partnership assets, made by the continuing partner who has assumed the payment of the partnership debts, to a partnership creditor, who is also a creditor of the continuing partner individually, was a question relevant to the issue upon the answer of payment is sufficiently manifest; and more than this we are not called upon by the presentation made in the brief of the appellants to decide.

Another group of four of the instructions given at the request of the appellee related to the issue under the third paragraph of answer. It is said of these in the brief for the appellants: "These instructions are all erroneous, especially the eleventh. It tells the jury that they may infer a novation or release from circumstances, without proof of any express agreement." The instructions in question are not set out in the brief nor is the substance of any of them further stated.

The eleventh instruction is as follows: "An express agreement on the part of the plaintiffs to discharge the defendant Austin from the debt sued on, and hold the defendant Renner as the sole debtor thereon, is not necessary in order to justify you in finding that such agreement existed. If from all the circumstances in the case and from all the evidence adduced upon the trial hereof such agreement reasonably appears, you have a right to draw the inference that such agreement actually existed, and find accordingly."

An agreement between partners, at dissolution of the partnership, that the continuing partner shall assume and pay the partnership debts may be made by...