Abbildungen der Seite
PDF
EPUB

Hosmer v. Burke.

individual property or out of the assets of the firm. No payment by them can be presumed to have been intended for the benefit of defendant. The partners, as a firm, were to pay one-half of the debt. As to the amount of interest of each partner in the firm, the record discloses nothing, neither is that necessary to be known in order to arrive at a correct conclusion upon the question before us. As between the partners, the question of contribution and liability of each to the other, is not involved in this action, and by it defendant is in nowise affected. If one paid all of the debt, defendant is in no manner prejudiced thereby.

He is bound to pay one-half, and that portion for which he is liable will neither be increased nor diminished by the fact, that the partners pay individually, and unequal amounts. It can surely be a matter of no moment to defendant, to whom he pays the amount for which he is liable, provided such payment discharges that liability. As we have seen, his liability is to plaintiff, and it will be fully discharged upon payment thereof.

A statement of the case in terms somewhat simplified will give clearness to our views.

John McCune and plaintiff, as partners, are bound upon the note with defendant; the partners jointly between themselves and defendant, are liable for onehalf the note, and defendant for one-half. The amount due upon the note is $2,000. McCune has paid upon it $100 and plaintiff $1,900. Now, if plaintiff recovers of defendant $1,000, which is the extent of his liabil ity, plaintiff will still have paid $400 more than his part as between himself and McCune and must recover that sum from McCune. Defendant's theory permits plaintiff to recover of defendant only the sum of $950, and requires McCune to recover of defendant fifty dollars, and plaintiff of McCune $450,- a roundabout way, it

Hosmer v. Burke.

must be confessed, to arrive at the settlement of a very simple account between the parties. Among many apparent objections to the theory is the very serious one, that, in case of the insolvency of McCune, plaintiff would suffer gross injustice in the loss of the portion of the money recovered by McCune from defendant. And this very state of facts is disclosed by the record, John McCune appearing therein to be insolvent.

V. The jury were instructed to exclude from their calculation, in estimating the amount of their verdict, the sum of $1,000, paid by defendant, and allow him no credit therefor. The evidence tends to show, that, by a mistake in estimating the amount due upon the note, the judgment of the County Court was $1,000 less than the real amount due. In correction of this mistake, defendant made the payment. The ground upon which the court excluded this payment, seems to be the fact that the amount due was determined by the judgment of the County Court. This the court appears to have held conclusive upon all the parties, and to have considered that the amount could not therefore have been recovered from the parties to the note. The instruction, as well as the principles upon which an attempt is made to sustain it, are erroneous. The mistake could certainly have been corrected by proper legal proceedings, and the unpaid balance could have been collected from the maker of the note. The defendant was justified, therefore, in paying it. The $1,000, having been paid upon a liability that could have been enforced, should have been allowed as a credit to defendant in estimating the amount of his liability; that is, it should have been considered as a payment by defendant upon the debt, and taken into consideration in ascertaining the amount which plaintiff is entitled to recover from him as contribution. The instruction excluding this payment, was therefore erroneous.

Orman v. Orman.

No other questions are presented in the argument of defendant's counsel. The assignment of errors raises. others, but they are not argued, and do not seem to be relied on by the counsel; we are not, therefore, required to examine them.

On account of the error above pointed out, the judgment of the District Court is reversed, and the cause remanded.

Reversed.

ORMAN V. ORMAN.

1. Homestead: ABANDONMENT. Upon the death of the husband, the wife is entitled to continue in the occupancy of the homestead. If, however, she permanently abandons it as a homestead, it ceases to have that character, and she forfeits her right thereto, and becomes - a tenant in common with the other heirs.

2.

PRIMA FACIE ABANDONMENT. A petition which avers that the plaintiff, after the death of her husband, did not occupy the premises as a homestead, and that she is a non-resident of this State and a resident of another State, shows a prima facie case of abandon

ment.

3. Demurrer: CAUSE. A demurrer based upon a ground not included in the enumeration of causes contained in section 2876 of the Revision, should be overruled.

Appeal from Monroe District Court.

THURSDAY, JANUARY 28.

THE petition contains substantially the following averments as a cause of action. That John H. Orman, a resident of Monroe county, died July 4, 1866, his father having died in 1864; that at the time of his death he owned and occupied as a homestead a certain house and lot in Albia; that plaintiff is his mother, and defendant his widow; that after his death defendant did not reside VOL. XXVI.— 46

Orman v. Orman.

upon nor occupy said property as a homestead, and that she is a non-resident of the State, and has become a resident of the State of Illinois, and has leased the said property, and received the sum of $160 for the rent thereof; that defendant is insolvent and owns no property in the State except her interest in the said house and lot, which has been sold on execution, the term of redemption, however, not having expired. Plaintiff asks judgment for $80, and for the appointment of a receiver to collect the rents of said property, and hold the same for distribution according to the order of the court.

Defendant demurred to the petition, raising thereby the question as to plaintiff's right to recover, and whether a proper case is made out for the appointment of a receiver. The court sustained the demurrer and rendered judgment thereon for defendant. Plaintiff appeals.

Anderson & Dashiell for the appellant.

George J. North for the appellee.

BECK, J.-Upon the death of John H. Orman his widow could have continued in the possession and occu1. HOMESTEAD: Pancy of the property as her homestead. Rev. abandonment. $2295. If, however, she abandoned its occupancy as a homestead, it ceased to have that character and she will be deemed to have waived or forfeited her right thereto as a homestead. Such abandonment in order to forfeit the homestead right must be permanent; not a mere temporary absence, with an intention of returning to the occupancy of the property as a home. Fyffe v. Beers, 18 Iowa, 4; Stewart v. Brand, 23 id. 478.

Upon the abandonment of the property as a homestead by defendant, she became a tenant in common with plaintiff, with equal rights to the profits thereof. Rev. §§ 2495–6;

Hunt v. Chicago and N. W. R. R. Co.

1 Wash. R. P., 436. If she received the rents she is liable to plaintiff for the one-half that came into her hands.

ment.

Does the petition sufficiently show such an abandonment of the property as to forfeit defendant's homestead 2. prima right therein? It is averred, that, after the facie abandondeath of her husband, she did not occupy the property as a homestead, and that she is a non-resident of the State and a resident of Illinois. Under a liberal construction of the petition authorized by Revision, section 2951, this must be held a sufficient averment of facts showing prima facie abandonment of the homestead. Probably defendant could have resided out of the State for the time shown in the petition, yet, on account of an animus revertendi would not have forfeited the right of homestead. It is not necessary, however, that the animus revertendi should be denied in the petition; if it existed it should have been averred by answer. The objections to the petition raised by the demurrer, that it does not sufficiently show plaintiff's interest in the property and negative defendant's homestead right therein are not well taken.

So far as the demurrer is aimed at the relief asked for by the appointment of a receiver, it should have been overruled. Such an objection is not among the enumerated causes of demurrer as contained in section 2876 of the Revision.

3. DEMURRER:

cause.

Reversed.

26 363 106 56

HUNT V. THE CHICAGO & N. W. R. R. Co.

1. Instructions: ERROR WITHOUT PREJUDICE. The giving of an instruction which, though technically erroneous, it is apparent could have worked no prejudice to the party complaining, will not operate to reverse the case.

26 363 115 314

« ZurückWeiter »