Metcalf v. Fouts

Walker, J. This cause was tried, in the court below, without the intervention of a jury, by consent of the parties. It is assigned for error, that the court below, excluded evidence of the expenses of collecting the money sued for, and that the finding is against the evidence. It appears from the evidence contained in the record, that the parties had been jointly engaged in the purchase and sale of horses and mules. That on a settlement of their firm business, there remained to be collected a note, on parties in Iowa, for the sum of $630; also an account against some person in Cincinnati, for feeding mules, the amount of which, at the time of the settlement, was not known. It also appears, that on the settlement, there was due appellant three hundred and fifteen dollars of the Iowa note. It was then agreed that the account should be equally divided, when collected. It appears, that the witness Fouts was to collect the note for the parties, and pay to each of the parties one-half. It also appears, that an order was given to John J. Fouts, on persons in Iowa who had the note for collection, for the note or its proceeds, which he afterwards transferred to Henry S. Metcalf, who collected at one time three hundred, and at another one hundred dollars, which he paid to appellant. It likewise appears, that appellant collected on the account, seventy-five dollars. From a reasonable and fair construction of the arrangement we have no hesitation in saying, that the parties designed the money to be equally divided, as the same should be collected. It cannot be, that it was their intention, that the different payments which might be received should remain in the hands of the agent or of either party, until the entire sum was received, before a division should be had. Nor had the appellant the right to receive his full share out of the first moneys collected, but only an equal portion as it should be received. The evidence shows that there had been collected and was in the hands of appellant, from four hundred and seventy-five to seventy-eight dollars, one-half of which, according to the settlement, belonged to appellee, and which he had a right to recover. It would therefore appear, that this judgment was too large, and the court erred in its finding. It is, however urged, that the appellant cannot assign error on this judgment, because no reasons for a new trial were filed in the court below. Under the 22nd section of the practice act, the parties are authorized to assign error on the final judgment, upon both the law and the evidence, in cases of trial by the court without a jury. Even if error cannot be assigned for the overruling the motion for a new trial, in such a case, yet as error may be assigned on the final judgment, there can be no force in the objection. The court under that section is authorized to consider both the law and evidence, and determine whether error has intervened in rendering the judgment. It is also urged, that the court below should have received evidence of the value of Henry S. Metcalf’s time in collecting, and trying to collect the Iowa note. The proof shows that he was going to Iowa on other business, and was to attend to this matter without charge. It, therefore, would have been improper to make any allowance for his time, unless it had been proved that a different arrangement had been made. No such proof was offered, and there was no error in excluding this evidence. The judgment of the court below is reversed, and the cause remanded. Judgment reversed.