Baum v. Fryrear

Ewing, C. This was a suit to recover on an account for merchandise sold to Reeves & Company, of which firm the defendant was a partner. The answer admitted the purchase of the goods by Reeves & Company, and admitted the indebtedness, but pleaded in defence that defendant, Fryrear, had sold his interest in Reeves & Company (which was composed of Reuben Reeves and C. Fryrear), to Frank Reeves; that Reeves and Brother assumed the payment of the plaintiffs’ debt, with others -of the old firm, and continued the business under the name of Reeves Brothers. That plaintiffs released defendant from all liability and accepted Reeves Brothers as their debtor. By consent, the case was tried by the [154] court without a jury, and upon hearing the evidence it. found for the defendant. I. The court, then, being the trier of the facts, and' having found for the defendant, we cannot disturb the-finding, unless there was no evidence at all upon which to base it. This court will not weigh the evidence and undertake to say the finding is not sustained by the weight of the evidence. If there is any evidence tending to prove the issues, the finding must be left to the court trying the case, or the jury. The evidence-tended to prove that Reeves & Company dissolved partnership, by Fryrear, one of its members, selling out to Prank Reeves; that the new firm assumed the-payment of plaintiffs’ debt. Then there was written and oral testimony offered on both sides for the purpose of showing that plaintiffs released the old firm and accepted the new. Prom all the circumstances, we think the evidence was properly admitted, and which might be-considered in making up the verdict. The court, upon all the evidence and circumstances, found for the defendant, and that finding we cannot disturb. II. The next and only remaining question is as to-the instructions. The plaintiff asked the following instructions : “1. Although the court, sitting as a jury, may believe from the evidence that the plaintiffs, in consideration of the sum of one hundred and four and eighty one-hundredths dollars, released Reuben Reeves from any liability on the indebtedness of Reeves & Company to the plaintiffs, yet such release did not of itself operate as-a release of defendant’s liability on such indebtedness.” “2. It devolves upon the defendant to prove affirmatively that the plaintiffs agreed either with the defendant, or with Reeves Brothers, to release the defendant from any liability on account of the indebtedness of Reeves & Company to the plaintiffs, and to accept Reeves Brothers for the same.” [155] ‘ ‘ 3. The court declares the law to be that it devolves upon the defendant to establish affirmatively by the evidence the defences set up in his answer, and unless defendant has so established said defence, the finding of the court will be for plaintiffs.” “4. If the. court believes from the evidence that plaintiffs had actual knowledge of the sale of the-interest of defendant to Frank Reeves, and brought their action in attachment against Reeves Brothers-without such knowledge, then their action in said suit, and the pleadings and papers therein, cannot be received as evidence of any intention to release defendant-from his liability to them unless it is further shown from-the evidence that plaintiffs accepted a part of the money derived from a sale under the deed of trust in favor of' W. W. Wood, trustee, kno.wing the source from which said money came.” “5. The court declares that defendant has introduced no evidence to support the allegations of the-answer.” The first and third were given, and the others refused. The fifth, being in the nature of a demurrer to the evidence, was properly overruled, as we hold that-there was evidence sufficient to go to the jury. The-fourth, we also think, was properly refused. The evidence referred to by that instruction was, we think, competent and proper to go to the jury, and upon which the instruction is based. It was not error to refuse the second instruction, because it is fully covered by the-third. The defence set up in the answer was to the effect that the plaintiffs released the defendant from liability, and accepted Reeves Brothers in his stead, so that if the-defendant established the defences in the answer, it was-sufficient. The judgment below is affirmed. All concur, except. Henry, C. J., absent.