Leach v. Leach — 2 Thomp. & Cook 657

Majority

p. 657

Leach, administrator, etc., v. Leach, appellant.

Headnote

Pleading—joinder of causes of action—evidence—impeachment—rule of interest — exception.

The complaint contained a claim for moneys arising from the sale of plaintiff’s property by defendant, which moneys were applied by defendant to his own use; and also a claim for moneys due upon an express contract. The first named claim was set forth as arising upon contract. Held, that the conversion of the moneys raised an implied promise to repay, and that the claim therefor was properly admitted to counterbalance a counter-claim of defendants.

Although a complaint may contain causes of action not properly united, or the complaint is not in accordance with the summons, and no objection is made by motion, but an answer is put in, defendant cannot object at the trial to the introduction of evidence, under either claim in the complaint.

Evidence was offered to show that a witness interposed to prevent a settlement between plaintiff and defendant of the matters in issue. jBeld, not admissible to impeach or discredit such witness. While a witness may be cross-examined to show that he has a feeling hostile to the opposing party, such feeling cannot be proved independently.

p. 658

Defendant claimed and was allowed for board of plaintiff $4 per wedk. Held, that there being no evidence that the board was to be paid at the end of each week, the refusal of the referee to compute interest thereon from the end of each week and computing from the end of the year was proper.

The rule of interest was a question of law which could be raised only by an exception so specific as to call attention to it.

James B. Jenkins, for appellant.

Henry Barclay, for respondent.

The opinion contains only a review of the evidence and findings of the referee. -All the points passed upon are fully noted in the head note, and it is not deemed necessary to publish the opinion at length.