Adams Co. v. Wasmer Fruit Co. ( 1916 )

GATES, J.

This is a companion case to No. 3891 of the same title, 159 N. W. 869. Reference is made -thereto for the facts. In that case the appeal was taken by the surety company. In this the appeal is taken by Nesbit, the principal. Both appeals are from the same judgment and order denying- a new trial.

[1] It is urged that the cause of action- against Nesbit was in tort, while that against the surety company was upon the bond, which Nesbit did not sign. This alleged misjoinder was waived by a failure to- demur to the complaint. C. C. P. 125.

[2] It is urged that the evidence showed that during a -portion 'of the time Nesbit was a partner -of the .plaintiff, instead of an employee. .It is held in the companion case that the relation of employer and employee between -the parties was unchanged, but, so- far as Nesbit is concerned, that is immaterial. The evidence showed without dispute his liability -to plaintiff for the amount of the -directed verdict, whether he was an employee or a partner. He cannot, for the first time, be heard in this court to complain that there has been no accounting and settlement between the alleged -partners.

Finding no error in the record, the judgment and order appealed from are affirmed as to- appellant Nesbit.