Gloyd v. Stansberry

*261 Opinion of the court by Irwin, J.: The assignments of error are all based upon the claim that the theory upon which the court below tried the case was wrong, and that the instructions set forth in pages 332, 337, and 344 of the case made, were erroneous. These instructions were directions to the jury of what were the rights of a person who had title to the property in question as a tenant in common, or one having a joint interest in personal property. Now we think an examination of the record will show that there is not only an entire want of evidence of the fact that any partnership rights attached to the building or property in question, but the testimony clearly shows that this building was the property of the defendant in error, J. M. Stansberry. The proof shows that the building was erected by Stansberry, and that the tools, machinery and architectural instruments, plans, and specifications were placed therein by him. The only witness who testifies directly on this point of ownership is Mr. Stansberry, himself, and he testified unequivocally that Flash never had any interest in the building. He admits that prior to October, 1900, he was in partnership with Mr. Flash in the carpenter business, but he states that Flash at no time had any interest whatever in this building, or the articles of personal property for which he claims damages in this suit. Mr. Stansberry testified that the lumber which went into this building was bought by himself, and paid for by his individual cheek. Mr. Overstreet, at pages 309 and 310 of the record, testified that Stansberry paid for the lumber, and signed his own name to the check. Now we have searched this record carefully, and in vain, to find any legal or competent evidence showing the exist *262 ence of any such bill of sale as is claimed in the pleadings. Hence we think the record discloses no defense whatever. Hence we think that the instructions of the court, while they were on a theory of joint ownership which the proof does not bear out, and correct on that theory, yet they were not in any way prejudicial to the rights or interests of the defendants We think that a fair and impartial trial has been had, and the judgment of the district court is affirmed, at the costs of the plaintiffs in error. Pancoast, J., who presided in the court below, not sitting; all the other Justices concurring.