Hoyt v. Reed

G-ambue, Judge, delivered the opinion of the court. In this case, the plaintiff, Beed, asked no instructions, and all asked by the defendant, Hoyt, except two, were given by the Circuit Court. The two refused were, first, that there is no evidence upon which the jury can rightfully find for the plaintiff on the amended count; second, that there is no evidence that the defendant, Hoyt, assented to the transfer of any of the liabilities of A. W. Sterling & Eckley, or either of them, to the firm of which the defendant became a member. 1. The ground taken in support of the first instruction is, that the amended count averred that deposits had been made by plaintiff with A. W. Sterling, and that the defendant, in consideration of being, admitted by Sterling as partner, agreed tO' pay the amount to plaintiff. The fact appeared to be that the deposits were made with Sterling & Eckley, as the firm of Sterling & Co. The evidence showed that Eckley went out of the concern about the last of December, or the first of January,, and that the defendant came in about the 8th of January. This change in the members of the firm made, no change in the business of the concern, and the bank book, held by the plaintiff during the time EAdey was a partner, was used as if no change had taken place. The account in it, both on the debit and credit side, was continued on, and balances were, from time to time, struck, as well before, as after the defendant became a partner. The account in this book was but a transcript of the ledger of the concern. Before the defendant came in, as partner, he was observed with Sterling and another person,-in a back room, examining the books of the concern. Although the deposits, made by plaintiff, were made when Eckley was a partner of Sterling, yet, when he went out of the concern, in December, or the first of January, the business , of the concern remaining unchanged by his leaving it, the money of the .plaintiff, -thus deposited, continuing in the busi [301] ness, as conducted by Sterling alone, might well be averred to be money deposited with Sterling, when that deposit was to be the consideration of defendant’s contract, and so there was no material variance. 2. The second instruction was also properly refused, for when the plaintiff produced his book, which showed his account, commencing before the defendant came in, as a partner, and running down after he came in, with balances struck after that time, and when it was shown that this account, so kept, was but a transcript of the ledger of the concern, the court could not, with propriety, say there was no evidence that the defendant had assented to the transfer of the liabilities of the old to the new firm. The evidence was the same in substance, as producing the books of the concern, of which the defendant is a partner, and using the entries in those books, to prove an indebtedness to plaintiff. The ease was fairly left to the jury and the judgment will not be disturbed upon any review of .the evidence. 3. The court below, ascertaining, by calculation, that the verdict must include an item for which the defendant was understood to be not liable to plaintiff, declared an intention to grant a new trial, unless the amount of that item was remitted by the plaintiff. It was remitted and the motion for a new trial was overruled. There was nothing wrong in'this practiced This court has allowed a. remittitur to be entered here, to avoid a reversal of the judgment below, where it has appeared that the recovery has been for more than the plaintiff claimed by way of damages in his declaration. Johnson v. Robertson, 1 Mo. Rep. 615. The judgment, with the concurrence of the other judges, is affirmed.