Rose v. Buscher

Fowler, J., delivered the opinion of the Court. The plaintiff sued the defendant in assumpsit on the common counts in the Circuit Court for Anne Arundel County. To this action the defendant pleaded payment and set-off, and filed with the latter a bill of particulars. The plaintiff pleaded limitations to defendant’s plea of set-off, and upon the suggestion of the latter the case was thereupon removed to the Superior Court of Baltimore City, where, after several amendments of the defendant’s pleadings, the case was finally tried before a jury on the common counts, to which [231] there was a general issue plea, a special plea of payment as. to the fifth count, and a plea of set-off, and the plaintiff’s plea of limitations thereto. The verdict of the jury having been against the defendant, he has appealed. The rulings upon the prayers present the only questions for review. The Court below granted five of the plaintiff’s prayers, namely, the first, third, sixth, seventh and eighth, and gave an instruction as to the application of limitations to defendant’s set-off. The defendant’s first, second and fifth prayers were each modified, and his sixth was rejected. i. The first prayer of the plaintiff is not objected to as granted, and all objections as to the sixth and eighth having been waived, we shall consider only the third and seventh. It will be observed that the third was granted in connection with defendant’s fifth prayer, and this being so, we are unable to see the force of the defendant’s objection that he was, by the granting of this prayer of the plaintiff, deprived of the benefit of the evidence offered under the plea of payment. Both prayers inform the jury that the defendant is entitled to a deduction from the plaintiff’s claim for all sums of money which they shall find the former paid for the latter by his authority ; provided, that no deduction shall be made for any of the alleged items of set-off mentioned in the instruction on limitation. The defendant, while conceding that limitations might be a bar to recovery for the items in the bill of particulars of his set-off, which are mentioned in the Court’s instruction, suggests that such items cannot be barred when offered under the plea of payment, because limitations cannot be pleaded to payments. Without discussing this proposition, it is sufficient to say that the record does not show that any evidence as to the items excluded by the Court’s instruction was offered by the defendant for any purpose. It may be assumed, perhaps, by reason of the Court’s instruction, that such evidence was offered in support of defendant’s plea of set-off, but there is nothing before us to show that any such evidence was offered in support of the plea of pay [232] ment. On the contrary, to sustain his plea of payment, the defendant offered an account of payments and disbursements which discloses none of the items contained in his bill of particulars of set-off. 2. The first prayer of the defendant was modified, and, we think, properly so. As offered, it sets forth the proposition that an agreement to farm on shares constitutes a partnership, and that therefore there can be no recovery in this case, because there has been no accounting between the plaintiff and defendant of the partnership transactions. But we suppose it can hardly be seriously contended that the fact.s set forth in this prayer are sufficient to warrant us in declaring, as matter of law, that a partnership existed between the parties. It is true that after several times saying that he and plaintiff agreed to farm on shares, the defendant in his testimony once called the relation thus formed a partnership, but that did not make it so. As modified by the Court this instruction simply told the jury that if the parties agreed to farm on shares the plaintiff could not recover in this action anything for wages. And so with regard to the sixth prayer of defendant, which was rejected. The fact that the parties agreed to farm on shares, and that the plaintiff agreed to expend nine hundred and thirty-six dollars in the farming operations-does not constitute a partnership.. The facts set forth in this prayer are entirely consistent with the existence between the parties of the relation of landlord and tenant. Blue v. Leathers, 15 Ill. 31; Holloway v. Brinkley, 42 Ga. 226. What we have said in relation to the correctness of the Court’s instructions as to limitations applies to the second and fifth prayers of defendant which were modified by the Court by adding to each of them the proviso that no deduction from the plaintiff’s claim should be made for any of the alleged items of set-off mentioned in the instructions on limitations. An examination of this record shows that the, defendant after making several amendments of his pleas, finally deter [233] mined to rely for his defence on payment and his theory of partnership. He had, we think, the full benefit of all the evidence he offered to sustain these defences. Upon the whole record we are of opinion the case was fully and fairly presented to the jury, and we are not disposed to disturb their verdict. Finding no reversible error the judgment' will be affirmed. (Decided December 18th, 1894.) Judgment affirmed.