Kelm v. Rathbun

Rombauer, P. J.,

delivered the opinion of the court.

In an action before a justice, the plaintiff recovered a judgment against A. B. Gilbert, Mary R. Rathbun and George R. Rathbun for $109.75. From this judgment the defendant George R. Rathbun appealed for himself alone. Upon trial anew in the circuit court judgmént was rendered against Rathbun for one hundred dollars, from which he prosecutes the present appeal.

All the defendants appeared before the justice of the peace and his transcript contains the following recital: “ Plaintiff filed for suit his account for $109.75. The defendant Mary A. Rathbun and A. B. Gilbert confess judgment for the amount of bill. Defendant George R. Rathbun denied that he is or was a member of the said firm and is therefore not responsible or liable for his wife’s debts, and moves the justice to dismiss the cause as to said George Rathbun ; motion overruled and judgment awarded plaintiff for the bill sued, as sued. ”

On the trial in the circuit court, the defendant objected to the introduction of any evidence, because the statement filed before the justice did not state any cause of action, and because the amended statement filed in this cause in the circuit court does not state any cause of action against this defendant. .These objections were by the court overruled and this ruling of the court is the main error complained of

Neither the statement filed before the justice nor the amended statement filed in the circuit court is contained in the transcript of the record, although it appears by the recitals in the record as well as by the briefs of both parties filed in this court, that a statement was filed before the justice and an amended statement in the circuit court. The parties in their briefs disagree only as to the contents of such statements.

It is evident that under these circumstances there is nothing before us for review on that point. The statements were before the circuit court and it adjudged them sufficient. That judgment is presumptively correct, until the contrary is shown.

It appears by the evidence that the only contention on the trial was, whether the defendant by his acts, conduct, and declarations had estopped himself to deny that he was a member of a restaurant firm composed of his wife and one Gilbert. There was no contention as to the items of the bill, which was a meat bill furnished by the plaintiff, a butcher, to the restaurant on running account. There was no evidence that the defendant was a member of the firm, or had so stated to plaintiff at any time in express terms. The acts, conduct and declarations of the defendant, consisted of contradicted evidence that he had a United States cigar and tobacco license in his own name displayed in the restaurant, and of the admitted fact that he paid bills against the restaurant, and permitted the plaintiff to credit amounts due the defendant, for groceries and cattle sold by the defendant to plaintiff on plaintiff’s bills against the restaurant. There was evidence that plaintiff gave credit to the firm, because he believed that the defendant was a member thereof.

The case was put to the jury on the theory of the defendant holding himself out as a partner, by an instruction drawn by tbe court itself, and stating tbe law on the subject, in careful and guarded terms. While the evidence of such holding out is slight, we are not prepared to say that there was no substantial evidence of it, so as to warrant us to vacate the verdict on that ground alone. All the judges concurring, the judgment is affirmed.