Farwell v. Tyler

Weight, C. J.

The errors assigned are:

First. In excluding the testimony of the witness, Yogt.

Second. In taking from the jury, the testimony of Finkbine.

It is objected, that the testimony of Yogt was inadmissible, because there was no proof made, or offered to be made, that Farwell agreed, at the time of the settlement, that the defendant might or should pay the debts still owing by the firm, as averred in the answer. We think, however, that such averment and proof were unnecessary, to admit the evidence offered. As one of the firm of Far-well & Tyler, defendant was bound equally with, his partner, Farwell, to pay the debt, without any agreement to that effect at the time of the settlement. Being thus *539 bound, he had a right to settle with and discharge the debt owing by the firm to Yogt, and to require the other partner to contribute his proper proportion of the amount thus paid. It was a duty which the law imposed upon him, and it needed no agreement between them, to authorize him to do it. Having done so, he would have a right to off-set the amount thereof, which Farwell should contribute, against the note; and the testimony showing the payment should have been admitted, unless the other objections urged by appellee are tenable.

And next it is urged, that the testimony was properly excluded, because no bill of particulars accompanies the answer. The writer of this opinion, thinks this objection well taken. A majority of the court, however, are of the opinion, that the objection was urged at too late a stage in the case. The argument is, that at common law, a bill of particulars was not required,' but that, under the general averments in the petition, or answer, a party was let in to his proof of specific items; that the Code has so far changed this rule, as to require a bill of particulars to be annexed, and provided as a penalty for such failure, that the opposite party may demur for such defect; and that, if the objection is not taken by demurrer, it cannot be urged when proof is offered to sustain the petition or answer. While I am willing to admit, that this construction may have a tendency to prevent delay and surprise in the trial of causes, and may receive some considerable support from the language of the section relied upon, and other provisions of the Code, yet I cannot believe that a party may not object for the same cause, on the trial. I think the statute was merely designed to give a party the right to demur for a cause, not known to the common law, but was not designed to confine him alone to his demurrer. He may demur, or take the objection at the trial. If made by demurrer, or at the trial, I would not be understood as depriving the opposite party of his right to amend. But if the objection is made, and no leave to amend is asked, I think the testimony should be excluded. *540 A majority of the court think otherwise, however, and this position of the appellee, is therefore overruled.

It is urged, however, that the note was made payable to D. C. Earwell; that the note was in his name; that there was nothing to show that M. C. Farwell had any interest in the suit; and that, therefore, the testimony of Yogt was properly excluded; and this involves the question, whether the testimony of Finkbine was properly withdrawn from the jury, and whether the suit was properly brought in the name of D. C. Farwell.

Civil actions are to be brought in the name of the real party in interest, but this is a rule of practice, and is in no wise to affect substantial rights. Code, sections 1616,1617. In this case, prima facie, the plaintiff is the real party in interest, for he relies upon, and introduces as evidence, a note made payable to himself. The note being thus payable, not being negotiable by delivery, nor assigned, M. C. Farwell could not sue upon it in his own name. If we should grant, therefore, that M. C. Farwell owned the note, and not the plaintiff, we still think the suit was properly brought. But if M. C. Farwell is the party beneficially interested in the debt, the defendant, if he can show this fact, may be let in to any defence he may have against him, though the suit is brought in the name of the person having the legal interest in the note. And, therefore, while the action may have been properly brought in the name of the payee, yet if M. C. Farwell is the real party in interest, we think it may be shown, and the defendant permitted to prove his off-set, or defence, against the beneficial party.

Entertaining this view, we think that Finkbine’s testitimony was improperly withdrawn from the jury. It may have been slight indeed, and had but little tendency to prove what is claimed by defendant, but of this the jury should have been permitted to judge. "We cannot say that by giving it every reasonable intendment in favor of the position assumed by defendant, the jury might not have found M. C. Farwell the real party in interest. If the testimony of Yogt and Finkbine had been received *541 and considered by tbe jury, they may have found that defendant was entitled'to a deduction upon the note. Of this, it was their province to judge, under the law to be given them by the court.

Judgment reversed.