Rutledge v. Tarr

ELLISON, J. This action is based on a petition wherein plaintiffs charge that they and defendant entered into a partnership to buy a certain threshing machine, which they were to operate together; that defendant by false and fraudulent representations induced plaintiffs to believe that they and defendant could purchase a machine of one Zollman for $1,200, and that each would pay $400 thereof; that he thereby induced plaintiffs, in reliance upon him, to give him $400 each, for the purpose of paying their part of the purchase price so represented by defendant. The truth is thén charged to be that defendant, at the time of these representations, was already himself the owner of the machine, having bought it of Zollman for $800. They then allege damage in the sum of $266.66, for which they ask judgment. The judgment in the trial court was for plaintiffs. There was a demurrer to plaintiffs ’ petition for the reason of improper joinder of parties and that no cause of action was stated. The demurrer was overruled and defendant answered. By answering) defendant waived the demurrer except the ground attacking the suffi [269] ciency of the statement of the canse of action. That it does state a canse of action clearly appears from the short statement we have just made of its contents. Defendant, by answer, again set np improper joinder of plaintiffs and an improper joinder of two canses of action in one count. That portion of the answer was stricken out and no exception preserved in the abstract presented here. The court admitted in evidence the transcribed notes of defendant’s evidence taken in a trial between defendant and the aforesaid Zollman. The objection to this evidence was general, the abstract merely stating that it was permitted to be read “over the objections of defendant.” The reasons for objections should have been given. At the close of plaintiffs’ case defendant offered a demurrer to the evidence which the court overruled. This point we can not notice since all of the evidence is not preserved in the abstract, only about one-fifth of the evidence being presented. We have time and again ruled that, on a demurrer to evidence, it must all be set forth. All other objections to the judgment go back to the point of a lack of evidence to sustain the different essentials charged to be necessary to plaintiffs’ case. But, as just stated, since defendant has not set forth all of the evidence, -we can- not say whether the contention is well or ill founded. But in addition to the foregoing, there is' no statement of defendant’s case to be found in his abstract or brief, as is specihlly required by the statute and rules of court. The judgment is affirmed. All concur.