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Kelsey v. Henry.

KELSEY V. HENRY.

CONTRACT.-Statute of Frauds.-An agreement between A. and B. that if B.

would assist A. in getting a lot of hogs to market, he should have as his compensation a certain share of the profits realized, was not within the statute of frauds.

ARREST OF JUDGMENT.-If a complaint contains one good paragraph, a motion in arrest will not lie.

COMPLAINT.-Judgment on.-If one of two paragraphs of a complaint is clearly good and sustains the finding and judgment, the judgment will not be reversed because the other paragraph may be insufficient.

From the Montgomery Circuit Court.

M. D. White, P. S. Kennedy, and W. T. Brush, for appellant.

PETTIT, J.-This suit was brought by the appellee against the appellant. The complaint was in two paragraphs.

The substance of the first is, that the plaintiff and defendant were partners for the purchase and sale of a large lot of hogs; that the defendant improperly and fraudulently purchased the hogs in his own name, and sold them for a large profit, and refuses to divide the profits with the plaintiff.

The second paragraph sets up the same matters, and alleges that the defendant agreed that if the plaintiff would help to get the hogs to market he should have a one-third interest; that he did so help to get the hogs to market; that they were sold for a large profit by the defendant, and that he refuses to pay to the plaintiff any part of the profits.

The question of the sufficiency of the complaint is raised, and it is said the complaint is bad because it does not show that a partnership was formed, but that there was only an offer of a partnership. In this the counsel are mistaken. The first paragraph has these words and allegation: "The plaintiff and defendant entered into a contract of partnership for the purchase and sale of three hundred and one hogs." In the second paragraph, the plaintiff says, "he entered into a contract of partnership with defendant for the purchase and sale of three hundred and one hogs."

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Brown v. The State..

It is objected that the contract set up in the second paragraph of the complaint is void under the statute of frauds. We do not think so. We do not understand that it sets up a contract for the sale of the hogs, but a contract that if the plaintiff would help to get them to market, he should have, as and for his reward or pay for his services, one-third of the profits made on the hogs. But, if we are mistaken in this, the appellant was not injured, for the first paragraph was clearly good, and warranted the finding and judgment in the case.

There was no demurrer to either paragraph of the complaint. There was a motion made in arrest of judgment, but for what cause or reason is not stated; but we think it was for the insufficiency of the complaint, and it is assigned for error that the complaint is insufficient.

If either paragraph of the complaint was good, the motion in arrest and the assignment of error that the complaint was insufficient ought not to prevail.

The only other question presented is the sufficiency of the evidence to sustain the verdict. We have read and considered it, and though it may be and is to some extent conflicting, we think it reasonably and fully sustains the verdict.

The judgment is affirmed, at the costs of the appellant, with ten per cent. damages.

Petition for a rehearing overruled.

BROWN V. THE STATE.

CRIMINAL LAW.-Evidence.- Variance.-An indictment charging an unlawful sale of intoxicating liquors to A. is not sustained by proof of a joint sale to A. and B.

From the Montgomery Circuit Court.

L. Wallace, G. D. Hurley, J. M. Thompson, and W. H. Thompson, for appellant.

Brown v. The State.

J. C. Denny, Attorney General, A. F. White, Prosecuting Attorney, and E. C. Snyder, for the State.

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WORDEN, J.—This was an indictment of the defendant for retailing intoxicating liquor on Sunday. It charges that the defendant, on the 6th day of September, 1874, that being the first day of the week, commonly called Sunday, at, etc., “did then and there unlawfully sell to one James Quinlan, for the sum and price of twenty cents, two drinks of whiskey, the said whiskey being then and there intoxicating liquor.”

There was a second count in the indictment, which, on motion of the defendant, was quashed.

The defendant pleaded not guilty, and, upon trial, was convicted, and judgment was rendered on the verdict, over a motion by defendant for a new trial.

During the progress of the case, the court made an order revoking the defendant's permit to sell intoxicating liquor.

On the trial, there was evidence that James Quinlan and John Nolan went into the defendant's saloon on the day named, and drank some whiskey, procured from the defendant, but whether it was sold or given to them was disputed. The court gave the jury the following instruction, which was excepted to by the defendant, viz.:

"If Quinlan and Nolan went into the saloon of the defendant on the Sunday morning in question, and called for whiskey, intending to purchase it of the defendant, and the defendant set it, the whiskey, out to them in the regular course of his trade, intending to make a sale to them, and in pursuance of such mutual intention he delivered the liquor to them, and they accepted it and drank it, this would constitute a sale; and if the refusal of the defendant to take the money was an afterthought, and only induced from the fear of an officer of the law who may have appeared upon the scene, it would, nevertheless, be a sale, and defendant could collect the price of the liquor in an action at law."

This charge, if it has any significance or application to the case, means that the facts enumerated by the court would constitute such a sale as would support the indictment and author

Brown v. The State.

ize the conviction of the defendant, all other necessary facts being proved. The jury must have so understood it. The court will not be presumed to have intended to announce a mere abstract proposition, having no application to the case. The charge is erroneous, in this, that it assumes that proof of a sale made by the defendant to two persons will sustain an indictment for a sale to one of them. A sale to two persons is a very different thing from a sale to one of them. Iseley v. The State, 8 Blackf. 403.

"Wherever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of express joinder are not necessary for this purpose; but on the other hand, there should be words of severance, in order to produce a several responsibility or a several right." 1 Parsons Con. 11.

We need not here trace out all the differences between a contract with one person only as the party of the one part, and a joint contract with two or more persons as the party of the one part. Nor need we discuss the consequences that flow respectively from each of such classes of contracts. They are so unlike, that if one joint contractor sue alone, others being alive, he must fail upon the trial. And if one joint contractor be sued alone, he may plead the non-joinder of the others in abatement; or, if it appear by the declaration that there are other joint contractors alive who are not sued, he may demur, or he might at common law have moved in arrest of judgment, or have sustained a writ of error. 1 Chitty Pl.

46.

For the error in the charge given, the judgment must be reversed.

This view renders it unnecessary for us to examine the regularity of the order revoking the defendant's permit.

The judgment below, as well as the order revoking the appellant's permit to sell intoxicating liquors, is reversed, and the cause remanded for a new trial.

Opinion filed May term, 1874; petition for a rehearing overruled November term, 1874.

Haggerty v. Johnston.

HAGGERTY v. JOHNSTON.

CONTRACT.-Statute of Frauds.-A parol agreement, made by one who has purchased the interest of a partner in the partnership property, to pay, as a part of the consideration for the property purchased, one-half of the debts of the old partnership, may be enforced against such purchaser by the holder of a note made by the members of the old firm. Such agreement is not within the statute of frauds.

From the Elkhart Common Pleas.

J. H. Baker and J. A. S. Mitchell, for appellant.
W. A. Woods, for appellee.

BUSKIRK, C. J.-The questions relied upon for a reversal of the judgment in this case arise entirely upon the first paragraph of the complaint. That paragragh alleges that on the 10th day of April, 1868, Winebrenner & Barnett, who were trading as partners under that name, were indebted to the appellee in the sum of six hundred and thirty-two dollars, evidenced by a note executed in the partnership name; that while such indebtedness existed, Winebrenner sold out his interest in said firm to the appellant, who, as a part of the consideration of the sale, assumed to pay Winebrenner's share of the firm debts, Barnett consenting to such arrangement; that the new firm assumed the name of T. Barnett & Co.; that afterward, on the 30th day of September, 1869, the said firm, in consideration of the aforesaid agreement and understanding, assumed, and in a written agreement indorsed on the back of such note, agreed, to pay said note, with ten per cent. interest thereon. A copy of the note and a copy of such agreement were made a part of and filed with said paragraph.

The appellant answered in four paragraphs.

1. The general denial.

2. Non est factum, as to the indorsement on the back of the

note.

3. That the note sued on was the note of Winebrenner & Barnett; that the consideration for which the note was given was money loaned by the appellee to said firm of Winebrenner

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