Howard v. Shirley & Hawkins

Ellison, J. — This action is based on,a petition containing two counts, the first on a promissory note and the second on an account for goods, wares and merchandise sold by plaintiff to defendants. The judgment below was for plaintiff on the second count. Defendant Shirley appeals. statement. It appears that defendants were partners and while the partnership existed bought lumber- of plaintiff. After the partnership was dissolved defendant Hawkins executed the note in suit to plaintiff in the partnership name for the amount due. The suit was originally on the note alone. Defendant Shirley answered denying the execution of the note under oath. Plaintiff thereupon filed his amended petition by adding a second count thereto based on' a contract whereby they delivered to defendants one hundred and forty thousand shingles part of the value of $3.20 per thousand and part of the value of $3.10 which defendants were to sell on commission of one half the profit, which latter sum with the value of the shingles amounting to $206.56 was to be paid to plaintiff. Defendant Shirley filed a general denial to said second count. After the cause had been heard by the court without a jury, but before a decision thereon, plaintiff filed his second amended petition, wherein he stated that the consideration of the note in the first count was for the sale of one hundred and forty thousand shingles by plaintiff to defendants at an average price of $3.15 per thousand and one half of the profits defendants might make in resale of the shingles. That said sums amounted to $206.56, for which judgment was asked. [154] 2*rial practice: pleadings: departure: two counts. [153] There was a motion by defendant Shirley to strike [154] out the second count of the first amended petition as being a departure and a statement of a new cause of action. It is stated that the court refused to rule on the motion. The refusal was perhaps grounded on the fact that the motion was not called up until after beginning of the trial on the answer filed. Piling an answer was a waiver of the motion to strike out. But aside from an abandonment of the motion to strike out, there was no merit in the motion. A count on a promissory note and a count on an account for goods sold and delivered may be joined in the same petition. Action: payment: note: forgery. Although it does not appear from the petition itself, yet in point of fact the second count is based on the transaction which resulted in the execution of the note and was the consideration therefor, and was doubtless caused the execution of by defendant Shirley denying the note. It is well recognized law that unless a note is taken in settlement and discharge of an account, the latter is not liquidated and may be sued upon; it being usual in such cases to surrender the note. But if the note is not a valid instrument, as if it was forged, or for other reasons was not the note of the party sued it could not affect the account or other consideration of the note. That would remain a cause of action to the creditor. Por the purpose of considering the question here, we must assume the note was not defendant Shirley’s obligation, having been executed for him by his former partner without authority and so the court found. The consideration for the note was undoubtedly a partnership liability, a liability therefore of defendant Shirley. We can, in no aspect of the case, agree with defendant’s criticism of the court’s action in the premises. [155] amendment at trial: The second amended petition, filed after the cause was heard, was doubtless made to conform to the proof. It consisted in amending the second count in the manner above stated. It was not a departure from .the original cause of action stated in the second count. It involved the same transaction. The only difference in the two consists in the first alleging a delivery of the shingles at a value, to be sold by defendants, the value and half the profits to be paid to plaintiff, while the second charged the delivery to defendants to be a sale to them at that value. It was properly allowed. We think the judgment for the right party and it is affirmed. All concur.