McEwen v. Johnson

Burnett, J., delivered the opinion of the Court—Murray, C. J., It is objected, in this case, that the finding of the Court, sitting as a jury, was defective and insufficient. The finding was simply “ that the facts stated in the plaintiff's complaint are true,” and “that the facts stated in the defendants’ answer are not true.” By the second subdivision of the thirty-ninth section of the Practice Act, the complaint must contain “ a statement of the facts constituting the cause of action,” and by the one hundred and eightieth section, the finding of the Court must contain a statement of “ the facts found.” Under these provisions, we think that the finding may well refer to the pleadings for a specification of the facts found and not found; provided, such reference is sufficiently distinct to make it intelligible, and the facts are sufficiently stated in the pleadings. In this case, there was a very clear and simple statement of the facts, in both the complaint and answer. It is also objected, that the evidence did not warrant the finding of the Court, especially as regards the facts stated in the answer. This is certainly true. The finding is “that the facts stated in the defendants’ answer are not true,” when it is clear, from the opinion of the Court, that the general negation is not true. Many of the facts stated in the answer were very fully and conclusively jiroven. But the question arises, whether the defendants were injured by this general finding ? Had the finding distinguished between the facts fully proven and those considered doubtful, would the case of the defendants have been in any better condition ? We think not. As to the question whether the order drawn by PTorth, upon the defendants, was a prima facie assignment of the debt due from the defendants to PTorth, we think there can be no doubt. Even if it had been for only a part of the debt, no one could have made the obligation but the defendants. It wpuld seem that a debtor may accept orders in favor of different persons, for different portions of the debt, and those accepted orders will bind all parties. It is also objected, by defendants, that the finding of the Court [261] was not warranted by the pleadings. This objection, we think, is not well founded. The only pleading allowed on the part of the plaintiff, is the complaint; and demurrer, (section thirty-eight,) and, by the provisions of section sixty-five, “ the allegation of new matter, in the answer, shall on trial be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require." The decision of the Court below, in rejecting the evidence offered by defendants, to prove that, by the agreement between North and Soule, made before the departure of North for the Colorado, the fund in question was pledged to the payment of Soule’s demand, was erroneous. The testimony was admissible, as a circumstance, to explain the bonafides in the drawing of the order. The rejection of' Soule’s testimony was correct. He was certainly as much interested as the plaintiff himself, and should have been made a party, had the defendants required it. As the case must be reversed, and a now trial had, it is not proper that we should intimate any opinion as to whether there was any evidence to sustain the charge of fraud in drawing the order. The judgment will be reversed and the cause remanded.