Presstman v. Fine

Adkins, J., delivered the opinion of the Court. The appellant and appellee, partners in a general merchandise business, having been discharged in bankruptcy, both as partners and individuals, desired, according to appellee’s story, notwithstanding the discharge1, to pay in full certain creditors who had lent them money. Accordingly, they entered intol an agreement that appellee should pay these creditors and appellant would repay him one-half the amount. There were four of these creditors and the aggregate of their claim was $4,300.

Appellee sued appellant on the common counts to recover one-half of said amount. The suit was commenced on March 5th, 1929, but was not tried until April, 1931, resulting in a verdict for plaintiff for $1,500, on which judgment was entered on April 30th, 1931. There is but one exception and that was reserved to- the ruling on the prayers. The court granted plaintiff’s prayer, granted defendant’s first prayer in connection with plaintiff’s prayer, and refused defendant’s second prayer.

The exception is to the granting of plaintiff’s prayer, the refusal of defendant’s second prayer, and to the granting of defendant’s first prayer in connection with plaintiff’s prayer. The objection urged to plaintiff’s prayer is that it permits-a recovery by plaintiff of one-half of any amount which the jury might find was paid by plaintiff; whereas, it is contended, the condition precedent to any recovery was- the payment by plaintiff of the entire amount of the claims which it was agreed should be paid. There was a concession in the case that the parties were discharged from said claims by the discharge in bankruptcy, and that the liability of the defendant depends upon whether he authorized plaintiff to pay them and agreed to pay one-half; and whether, plaintiff complied with the agreement. Defendant denies that there was any such agreement.

He ¹³⁵ further contends that, according to plaintiff’s own testimony, defendant was not liable at the time of the bringing of the suit, because he was not required to pay anything until plaintiff had paid all the- claims in full, and a small part of one of these claims had not been paid at the time suit was. docketed. It is not perfectly clear, considering plaintiff’s testimony as a whole, whether he was to be paid one-half only when he had paid all the claims in full; or whether, as he completed the payment of any of the claims, defendant was. tol pay him half of that claim. The first part of the challenged prayer seems to be predicated upon the theory that it was an entire sum to be paid. In that view the end of the prayer is not consistent with the beginning, and should not have been granted in that form.

But we do not find any prejudicial error. The jury evidently believed plaintiffs story and gave him a verdict for $1,500. If the stoky was true, there had been a substantial compliance by plaintiff at the time of bringing suit, even if that agreement required him to pay all the claims in full before he could have any demand upon defendant. The verdict of the jury was. for $1,500, which left more than enough in defendant’s hands, of the $2,150 which plaintiff claimed, to pay the balance due the one creditor whom plaintiff had not paid in full at the time of bringing suit.

In such circumstances the case should noft be sent back for a new trial on a bare technicality. It is not apparent to us why defendant’s first prayer should have been granted in connection with plaintiff’s prayer, but it could not have prejudiced defendant. We find no error in the refusal of defendant’s, second prayer, as it would have prevented recovery notwithstanding the jury should find the agreement and a substantial compliance