Whitlock v. Bueno — 1 Hilt. 72

Majority

p. 72

Thomas Whitlock and others v. Francisco V. Bueno.

Headnote

In an action by several plaintiffs, as partners, for goods sold and delivered, the defendant cannot avail himself on the appeal, of the objection, that they omitted to prove their partnership, if ho allowed the omission to pass without objection on the trial.

In an action for goods sold and delivered, the evidence showed that the defendant admitted the correctness of the bill and promised to pay it, but objected to the interest, and said he bought the goods on credit, without specifying the length of credit: Held, there being evidence tbat he had made payments on account before suit brought, that tbe judgment of the justice, in favor of the plaintiff for the amount and interest, was c.orrect.

Appeal by defendant from a judgment of the Marine Court. This action was brought by the plaintiffs, as partners, against the defendant, for goods sold and delivered. The only evidence offered was that of the plaintiffs’ book-keeper, who testified tbat be presented tbe bill to tbe defendant, wbo admitted its correctness and promised to pay it. It appeared, on tbe cross-examination of this witness, tbat the defendant said at tbe same time tbat be bought tbe goods on time and objected to tbe interest, but did not say he would not pay it. It also appeared tbat be had made paj'ments on account of tbe bill. No evidence of the plaintiffs’ partnership was introduced, but no objection was made upon the trial on that ground, nor was any motion made for a nonsuit. Judgment was rendered for the plaintiffs, from which the defendant appealed.

Me Gunn and Moncrief, for the appellant.

Edward IF. Marsh, for the respondent

No objection was made upon the trial to the want of proof that the plaintiffs were partners. The evidence showed that the property sold be<onged to the plaintiffs— not to any firm — and as the defendant suffered it to pass without

p. 73

any objection, be is too late now to make it. If tbis objection bad been taken on tbe trial, tbe defect of proof might bave been remedied.

The evidence showed that tbe bill bad been presented to'the defendant and be promised to pay it. Tbis was enough to make out tbe plaintiffs’ case. Tbe allegation of the defendant, that be bought on time, amounted to nothing. If be claimed a credit on tbe sale, it was incumbent on him to show on what credit be purchased tbe goods. Giving all tbe weight that could be given to such a remark, tbe justice could not say whether tbe term of credit was a week, a-month, or a year, and tbe whole allegation, that be bought on credit, was inconsistent with the admitted fact of bis having made payments on account of tbe purchase fron^$ fortnight after the first purchase, and at various times subsequently — at any rate, no credit could be allowed, because no specific credit was proved.

The j udgment should be affirmed.