Walton v. Payne ( 1856 )

Wheeler, J.

Where defendants who are sued jointly have separate defences, they may, in general, sever ; that is, each one may rely on his own separate defence. But it is not a necessary consequence, that they will have a right to sever in their trials, though they may have severed in their answers. The defendants were sued as partners upon an indebtedness of the firm. They severed in their answers, and asked to sever on the trial. But they showed no sufficient ground to entitle them to' several trials ; and the Court did not err in refusing the application.

The defence relied on by the appellants was, that the plain, tiffs, by drawing an order upon their co-defendant, which had been accepted, had released them, and taken him for the debt. But this defence was disproved. The evidence, upon this point was, that one of the appellants had requested the plaintiffs to get their co-defendant, Roy, to pay or secure the debt, and that the plaintiffs agreed to do so, and to release the appellants, if they could effect this. And the order was drawn for this purpose, and in the hope of getting further security than the promise of the defendant Roy. They, however, did not succeed in getting the additional security ; and it' was only in that event that the appellants were to be released. Under the agreement, it is clear, therefore, that the acceptance of the order by Roy, did not release the appellants'from their liability It was done at their instance, it seems, and for their benefit; but when it failed to answer the purpose intended, they cannot take advantage of it to discharge their liability to the plaintiffs. The defendant Roy is the only one who can be injured by the order ; and he has not complained of the judgment. It is clear that the appellants did not make out their defence ; and the instructions asked were rightly refused, because not warranted by the evidence.

The defendant Roy was not the only one who admitted the indebtedness. One of the appellants also admitted it in conversation with one of the plaintiffs, as is shown by the answer of the latter to interrogatories, and stated that if Roy did not pay it, he would have it to pay. The evidence of indebtedness was sufficient to warrant the verdict.

The application for a new trial was rightly refused. The testimony of the witness, if inadmissible, should have been objected to upon the trial. Not having been then objected to, its admission could not be made a ground for the granting of a new trial. If proof of the dissolution of the partnership was material, that too should have been made upon the trial. There is no error in the judgment and it is affirmed.

Judgment affirmed.