Irvine v. Baxter Stove Co. , 1919 Ind. App. LEXIS 14 ( 1919 )

Batman, P. J.

The complaint in this action is in two paragraphs, in which appellee is plaintiff, and James T. Irvine, Jr., and James T. Irvine, Sr., are defendants. The first paragraph is based on a promissory note alleged to have been executed to appellee by the said Irvine and Irvine under the firm name and style of James Irvine and Company. The.second paragraph alleges in substance that said James T. Irvine, Sr., held himself out as a partner in the firm of James Irvine and Company, and knowingly permitted James T. Irvine, Jr., to hold him out as a partner in said firm, with the intention that appellee should act on such representation as being true;.that appellee, believing said representation, and having no knowledge that the same was not true, was induced thereby to sell goods and extend credit to said-James.. Irvine and Company, and to accept a certain promise; sory note for $166.18 executed by said company; that said note is now due and unpaid. Each paragraph of the complaint referred to the same promissory note* which was made a part thereof by a copy filed as an exhibit therewith. James T. Irvine, Jr., filed an answer in two paragraphs, the first being a general denial, and the second a plea of payment. James T. Irvine, Sr., also filed an answer in two paragraphs, the first being a general denial, and the second a plea of non est factum. To the second paragraph of the answer of James T. Irvine, Jr., appellee filed a reply in general denial. The cause was submitted to a jury for trial, resulting in a verdict for appellee, on which judgment was duly rendered. James T. Irvine, Sr., filed a separate motion for a new trial, which was overruled. He is now prosecuting this appeal, and has assigned the action of the court in overruling his motion for a new trial as the sole error on which he relies for reversal.

1. Appellee contends that no question is presented for our determination, as neither the motion for a new trial nor its substance is set. out in appellant’s brief. Since the filing of appellee’s brief, appellant, by leave of court, has amended his brief by inserting therein a copy of said motion, which has cured the alleged omission therein.

Appellant contends.that the court erred in giving instructions Nos. 7, 9,12 and 13 on its own motion.

2. We are not required to consider any objections made to instructions Nos. 7 and 9, as appellant did not assign the action of the court in giving either of them as a ground for a new trial. Parker Land, etc., Co. v. Ayres (1909), 43 Ind. App. 513, 87 N. E. 1062.

3. Said instructions Nos. 12 and 13, given by the court on its own motion, relate to the cause of action stated in appellee’s second paragraph of complaint. By these instructions the jury was informed in effect that there could be no recovery against appellant on said paragraph, unless the jury should find that appellant, by his acts or language, knowingly, voluntarily and intentionally held himself out to appellee as a partner in the alleged firm of James Irvine and Company, or so permitted himself to he so .held out by said James T. Irvine, Jr., and that by reason of said fact appellee has sustained some financial loss, or stands to sustain a financial loss. Appellant bases his objection to said instructions on the clause which we have italicized. He insists that appellee must liave sustained some financial loss before there can be a recovery on said second paragraph of complaint. We do not understand that appellee was required to establish such fact. It is well settled that where one holds himself out as a partner in a particular firm, or knowingly permits himself to be so held out, he is liable to those who deal with such firm, in the belief that such representation is true, as fully as if he were a partner in fact. 30 Cyc 391; 20 R. C. L. 1067; Story, Partnership (7th ed.) §64; Strecker v. Conn (1883), 90 Ind. 469; Breinig v. Sparrow (1907), 39 Ind. App. 455, 80 N. E. 37; Steele v. Michigan Buggy Co. (1912), 50 Ind. App. 635, 95 N. E. 435; Phipps v. Little (1913), 213 Mass. 414, 100 N. E. 615; Peck v. Lusk (1874), 38 Iowa 93; 2 Brickwood, Sackett’s Instructions §2201. A person becoming a creditor of such a firm under the circumstances stated would have a right to join a party so held out as a member thereof in an action against the real members of such firm, and recover a joint judgment against all without alleging or proving that he had suffered, or may suffer, a financial loss by reason of such holding out. An instruction authorizing a recovery without such a condition was approved by the Supreme Court in the case of Dailey v. Coons (1878), 64 Ind. 545.

4. It follows that said instructions are erroneous, but there was nó reversible error in giving the same as they placed a greater burden on appellee than the law required it to assume, and therefore were favorable to appellant. Pennsylvania Co. v. Stalker, Admr. (1918), 67 Ind. App. 329, 119 N. E. 163.

Appellant also contends that the court erred in refusing to give instructions Nos. 3 and 4 requested by him. These instructions are the same as Nos. 12 and 13 given by the court on its own motion, except that neither of them contain the clause which we have italicized above. For the reasons stated in passing on said instructions given, there was no error in refusing to give said requested instructions.

5. Appellant in his motion for a new trial alleges that the court erred in the admission of certain evidence, but has failed to present any question thereon for our determination, as his brief does not disclose what objections, if any, were made in the trial court to the admission of such evidence at the time it was offered. Only such objections thereto 'as. were made at such time are available on appeal. McCray v. Whitney (1914), 56 Ind. App. 94, 104 N. E. 979. And the brief of the complaining party must show what these objections were. Templer v. Thompson (1917), 66 Ind. App. 222, 117 N. E. 936. True, certain objections thereto are statedin the motion for a new trial, some of which appellant has attempted to present in his brief, but these will not be considered in the absence of a showing that they were made to the trial court when it ruled on the admissibility o'f such evidence.

However, the 'only portion of such objectionable evidence to which appellant has made any reference in Ms propositions or points consists of a certain letter written by one Elmer Hutchinson, and another by Perry C. Hartley. The record fails to disclose that any objections were made iii the trial court to the admission of the former letter, and hence there was no reversible error in its admission. The latter letter was written to appellant in response to one received from him, the contents of which had been given in evidence without objection. It was pertinent to the issues formed on the first paragraph of the complaint, and there was no error in its admission under the facts and circumstances shown by the record.

6. Appellant predicates error on the failure of the court to instruct the. jury that the letter of Perry C. Hartley should not be considered as affecting the issues under the second paragraph of the complaint. It is a well-settled rule that evidence competent for some purpose should not be excluded because a jury may erroneously use it for another purpose. 10 R. C. L. 929. A party desiring to guard against such possibility should tender an instruction limiting its application to the matter for which it is competent. Clark v. Clark (1917), 187 Ind. 25, 118 N. E. 123; International Harvester Co. v. Haueisen (1918), 66 Ind. App. 355, 118 N. E. 320.

7. Appellant, however, seeks to avoid an application of this rule in the instant case on the ground that the court in the presence of the jury stated that it would instruct the jury in that regard. The only evidence.of any such statement appears by affidavit filed with the motion for a new trial. This is not sufficient, as matters of this kind cannot be brought into the record this way. Hood v. Tyner (1891), 3 Ind. App. 51, 28 N. E. 1033; Dorsey v. State (1913), 179 Ind. 531, 100 N. E. 369; Shank v. State (1915), 183 Ind. 298, 108 N. E. 521. Therefore we cannot say that appellant was relieved from a compliance with the rule cited.

8. Appellant also contends that the verdict is not sustained by sufficient evidence. We cannot concur in this contention, as there is legal evidence supporting every essential fact necessary to appellee’s right of recovery. This is sufficient on appeal, Ellison v. Ryan (1909), 43 Ind. App. 610, 87 N. E. 244.

9. Other grounds for a new trial are waived by appellant by a failure to make any specific reference thereto in his propositions or points. Buffkin v. State (1914), 182 Ind. 204, 106 N. E. 362.

We find no reversible error in the record. Judgment affirmed.