Steele v. Michigan Buggy Co.
| Decision Date | 20 June 1911 |
| Docket Number | 6,991 |
| Citation | 95 N.E. 435,50 Ind.App. 635 |
| Parties | STEELE v. MICHIGAN BUGGY COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied June 7, 1912.
From St. Joseph Circuit Court; Walter H. Funk, Judge.
Action by the Michigan Buggy Company against Charles Steele and another. From a judgment for plaintiff, the defendant Steele, appeals.
Reversed.
Dudley M. Shively, Charles P. Drummond and Donald P. Drummond, for appellant.
M. L Howell, V. G. Jones, D. D. Bates and Gilbert A. Elliott, for appellee.
Action by appellee against appellant and Delos Metzger on note and account.
The complaint is in two paragraphs, each of which seeks to charge appellant and said Metzger as partners doing business under the firm name of "The Mishawaka Carriage and Harness Company," the first paragraph being an ordinary suit for a balance due on account for goods and merchandise sold and delivered to said firm in the sum of $ 278.76, and the second paragraph being on a note alleged to have been executed by said defendants, and which they failed to pay after protest. Total demand, $ 600. There was a separate answer of general denial by each defendant to each paragraph of the complaint, and a sworn answer of non est factum to the second paragraph by defendant Steele. On the issues thus formed, there was a trial by jury, and a verdict against both defendants in the sum of $ 517, on which judgment was rendered, and defendant Steele prayed an appeal, having first unsuccessfully moved for new trial.
The first and second assignments of errors relate to rulings on a motion to strike out parts of a deposition, and are proper grounds for new trial, but cannot be considered as independent assignments of errors. National Bank, etc., Co. v. Dunn (1886), 106 Ind. 110, 6 N.E. 131; Burnett v. Milnes (1897), 148 Ind. 230, 235, 236, 46 N.E. 464; Capital Nat. Bank v. Wilkerson (1905), 36 Ind.App. 550, 555, 76 N.E. 258.
This leaves as the only error properly assigned and presented, that of the ruling of the court on the motion for a new trial. The first ground of this motion urged calls in question a ruling on the admission of certain evidence. The question objected to related to a memorandum filed as an exhibit with a deposition, said memorandum being a "statement as a basis of credit made to the Mercantile Agency R. G. Dun & Co. for the use of its creditors, " and the question was: "And why is the blank healed D. R. Metzger proprietor, if you know?" The question was objected to on the ground that the paper itself was the best evidence of its contents. The question did not ask for the contents of the memorandum or for any part of the same, and was not subject to the objections urged against it. The question and the evidence sought by the answer thereto were explanatory only, and in view of the questions and answers that had preceded the one objected to, we think the question was a proper one.
While it is settled law "that parol evidence is not admissible to vary, contradict, add to or take from a written instrument," yet it "is equally as firmly established, and strongly sustained by authority and on principle, that parol evidence is admissible to give effect to a written instrument, by applying it to the subject-matter, * * * and where there are equivocal expressions used in a written instrument, parol evidence is admissible to show in what sense they were used by the parties." Mace v. Jackson (1871), 38 Ind. 162, 166, 167. See, also, Evansville, etc., R. Co. v. Shearer (1858), 10 Ind. 244, 248, 249; Clark v. Crawfordsville Coffin Co. (1890), 125 Ind. 277, 280, 25 N.E. 288; Thomas v. Troxel (1901), 26 Ind.App. 322, 328, 59 N.E. 683.
The next grounds of the motion for a new trial, being numbers two, three and four of the errors presented by appellant, relate to rulings on motion to strike out parts of a deposition, and are not available because such motion was not in writing. The statute requiring such motion to be in writing is mandatory. § 662 Burns 1908, Acts 1903 p. 338; Crystal Ice Co. v. Morris (1903), 160 Ind. 651, 653, 67 N.E. 502.
The grounds for a new trial presented by errors six, seven and eight, relied on and urged by appellant, call in question the ruling of the court in the admission of certain evidence over the objections of appellant, and presents in a different form the same question attempted to be presented by the errors last above mentioned. This evidence was by way of deposition, and consisted in statements made by appellant's codefendant, Metzger, to the witness, tending to show the partnership between appellant and said Metzger, the ground of the objection being that "appellant cannot be bound by the statement of Metzger made in his absence," and "that the relation of partners cannot be established by the declaration of an alleged partner."
The questions and the evidence sought to be elicited thereby were not subject to the objections urged against them, because in this case the record discloses that both defendants, Steele and Metzger, had each filed a general denial to each paragraph of the complaint, and were, in fact, each insisting and had each so testified on the witness-stand, that the partnership relation did not exist between them.
Where each of the alleged partners has filed an answer in general denial, as in this case, the admission of either is competent as against himself. Vannoy v. Klein (1890), 122 Ind. 416, 23 N.E. 526; Cook v. Frederick (1881), 77 Ind. 406; Bennett v. Holmes (1869), 32 Ind. 108.
Metzger having testified in the case, in behalf of Steele, that no partnership existed between himself and Steele, his statements or admissions out of court, to the contrary, were proper as affecting the weight to be given to his testimony at the trial. McAfee v. Montgomery (1898), 21 Ind.App. 196, 201, 51 N.E. 957; Moelering v. Smith (1893), 7 Ind.App. 451, 456, 34 N.E. 675.
The question of the effect of the testimony and the purpose for which it should be considered by the jury was a matter to be controlled by proper instructions.
The questions next presented by appellant in his brief relate to the giving of certain instructions by the court on its own motion, and at the request of appellee, and the refusal of certain instructions requested by appellant.
It is insisted by appellee that in the grounds for new trial the alleged error in giving these instructions is joint, and that, therefore, no available question is presented as to each individual instruction, unless each is erroneous.
It is well settled that if instructions be excepted to in gross, or if the ground of the motion for new trial alleging error in giving or refusing instructions be in gross, and one of said instructions be sound, the error so relied upon in giving or refusing the same will not be available on appeal. Ohio, etc., R. Co. v. McCartney (1890), 121 Ind. 385, 387, 388, 23 N.E. 258; Sutherlin v. State (1886), 108 Ind. 389, 392, 9 N.E. 298.
But, in the case at bar, we think both the exceptions saved to the instructions given and refused, and the ground for new trial, on which error is predicated in giving and refusing the same, are specific and definite as to each, and designate and present for the consideration of this court the correctness of each instruction given and refused.
The first instruction objected to by appellant is number four, given by the court of its own motion, and is as follows:
In considering this instruction, it must be kept in mind that the only question in this case was whether defendant Steele should be held liable as a partner on the note and account sued on. There was no denial, in fact, that the Mishawaka company got the merchandise on which the account was predicated; nor was there any denial by said Metzger that the note sued on in the second paragraph of complaint was executed by him in the name and style of the "Mishawaka Carriage and Harness Company."
This instruction is prefaced with a statement to the jury that there were two questions for it to consider in determining whether defendant Steele was liable to plaintiff, and then correctly tells the jury, first, what will authorize a recovery in case the...
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