McBride v. Stradley
| Decision Date | 06 October 1885 |
| Docket Number | 12,257 |
| Citation | 2 N.E. 358,103 Ind. 465 |
| Parties | McBride v. Stradley |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Nov. 4, 1885.
From the Whitley Circuit Court.
Judgment affirmed.
C Clemans, for appellant.
W. F McNagny and T. R. Marshall, for appellee.
The complaint of the appellee alleges that he and the appellant entered into a contract of partnership, and that the latter violated the terms of the contract. Prayer for an accounting and for judgment for the amount due the appellee.
The first paragraph of the appellant's answer pleads the general denial, the second pleads payment, and the third and fourth plead special defences.
The questions first requiring attention are those arising on the ruling on demurrer to the third and fourth paragraphs of the answer.
The third paragraph alleges that the partnership is indebted to the appellant in the sum of $ 500 for services performed at the special instance and request of the members of the firm. This paragraph is bad. A partner can not recover for services rendered a firm of which he is a member, unless there is an agreement that he shall recover for such services. It is the duty of a partner to devote his services to the business of the firm without compensation, except such as arises from the profits, unless there is some stipulation to the contrary. Parsons Partnership (3d ed.), 250; Story Partnership (7th ed.), section 182; Lee v. Davis, 70 Ind. 464; Lassiter v. Jackman, 88 Ind. 118.
The fourth paragraph of the answer is, in legal effect, nothing more than an argumentative denial, and as the general denial was pleaded no substantial error was committed in sustaining the appellee's demurrer.
The appellant complains of the ruling of the court refusing to postpone the trial of the case, and assigns this ruling as a cause for a new trial. The application for delay was based upon the affidavit of appellant's attorney, who states therein that he believes that the absence of the appellant was caused by sickness in his family. The affidavit shows that the appellant was duly notified of the time the cause was set for trial, and it was his duty to show what caused his absence, definitely and clearly. The trial court is not bound to postpone the trial of a cause upon a general and indefinite statement that a party's absence is caused by the illness of some member of his family. Affidavits filed subsequent to the ruling and trial can not be considered, for the question is, was the ruling right upon the affidavits presented to the court prior to the trial? Affidavits filed after the trial might, perhaps, be useful and influential upon a motion for a new trial or the like, but they certainly can not be given such a retrospective effect as to make an antecedent ruling erroneous.
We need not and do not decide whether the absence of a party caused by illness can properly be considered a cause for a new trial, for we think that the case here made for a new trial not strong enough to warrant a reversal, even conceding that the cause stated can be considered as a ground for a new trial. The...
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