Little v. Lee

Vanderburgh, J. This action is brought to recover a balance due upon an account stated, for professional services, alleged to have been performed for the defendant and one Backus, who were therefore jointly liable therefor. But the complaint further shows that Backus had paid over to defendant his half of the claim for the use and benefit of the plaintiffs, “and upon the agreement and understanding between said Lee and Backus and that said Lee should pay the amount to plaintiffs.” The complaint presents on its face the excuse for the nonjoinder of Lee. These allegations are put in issue by the general denial in the answer, which also affirms that the account was stated and agreed on between plaintiffs and defendant and Backus as copartners, and not otherwise. We do not think it was necessary for the defendant to allege formally the nonjoinder of Backus, because the plaintiffs, under the allegations in the complaint, in order to recover against Lee severally, were bound to prove the facts essential to establish a several liability against defendant, Lee, and Backus was thereby shown to be a necessary party, unless the allegations excusing the nonjoinder were proven. ■ But this issue is not covered by the findings of the court. The court simply finds the joint obligation of Backus and defendant to the plaintiffs, and the balance due thereon. Under the pleadings, this does not warrant the several judgment ordered against the defendant, Lee. *514 The stub of the lost check testified to by defendant was not evidence of the contents of the check. It does not appear when the entry upon the stub was made, or by whom, and upon the question of veracity between defendant and plaintiffs’ witness Nunn 'its correctness and effect as evidence must still rest upon the parol evidence of defendant, identifying it and its contents, so that it did not tend to strengthen his testimony. It was properly ruled out. Judgment reversed, and new trial ordered. (Opinion published 55 N. W. Rep. 737 .)