Terwilliger v. Murphy

• Decision Date: 23 November 1885
• Docket Number: 12,032
• Citation: Terwilliger v. Murphy, 104 Ind. 32, 3 N.E. 404 (Ind. 1885)
• Parties: Terwilliger v. Murphy et al
• Court: Indiana Supreme Court

3 N.E. 404

104 Ind. 32

Terwilliger v. Murphy et al

No. 12,032

Supreme Court of Indiana

November 23, 1885

From the Tipton Circuit Court.

The judgment is affirmed, with costs.

W. O Dean, for appellant.

P Behymer and C. W. Swaim, for appellees.

OPINION

Niblack, C. J.

Harrison Murphy and George H. Cook, claiming to be partners doing business under the firm name of Murphy & Cook, brought this action against Drury B. Vice, Frank Terwilliger and William E. Terwilliger, before a justice of the peace of Tipton county, to recover the value of a quantity of drain tile alleged to have been sold to them.A trial resulted amongst other things, in a separate judgment against Frank Terwilliger, the appellant here, for $ 88.50.Upon an appeal to the circuit court there was a finding and judgment against the appellant for $ 88.45, and the only question made in this court is upon the sufficiency of the evidence to support the finding of the circuit court.

Much of the evidence was addressed to merely collateral and incidental matters, and in all that mostly tended to establish a liability on the part of the appellant, it was irreconcilably conflicting.

It is first claimed that there was no evidence tending to prove that the appellees were partners, as averred in the complaint.There was no formal proof establishing the existence of a partnership between the appellees, but the evidence made it quite obvious that if the appellant was liable at all, it was to the appellees jointly, and the cause was tried upon that implied assumption.The fair inference from all the facts and circumstances developed at the trial seemingly was, that the appellees were partners as charged.

It is next complained that there was no evidence tending to show that the appellant ever bought any tile of the appellees.It was made to appear by the evidence, that William E. Terwilliger, who is the father of the appellant and a resident of the State of Ohio, and Vice, were the owners of adjoining tracts of land in Tipton county through which, or parts of which, a ditch had been opened; that the appellant resided upon and cultivated the tract of land belonging to his father.

There was also evidence tending to prove that the appellant accompanied Vice to the appellees' tile factory and stood silently by while the latter ordered the tile, to recover the value of which this suit was instituted; that Vice, in the appellant's presence, told Murphy, one of the appellees, to charge him, Vice, with one-half of the tile and the Terwilligers with the other half; that the appellant told Murphy that his father would be out from Ohio soon and make it all right.

It is true that the appellant, as a witness, gave a very materially different version as to what occurred at the time the tile was ordered, but there was evidence tending to describe the transaction in question as...