On Motion for Rehearing. In our original opinion we copied from the plaintiff's petition the following allegation:
"That thereafter there was paid in on said enterprise by plaintiff and the said John Lovejoy the sum of $28,415.29, of which sum the plaintiff paid the sum of $17,769.53, and the said Lovejoy paid the sum of $7,123, whereby plaintiff paid for the said Lovejoy over and above the sum for which he, plaintiff, was responsible, the sum of $10,645.76, which sum was owing by the said Lovejoy to the plaintiff at the time of his death, and in addition thereto interest at the legal rate upon each of the sums so paid by plaintiff for or to said Lovejoy from the date of payment. An itemized statement of the items paid by both plaintiff and the said Lovejoy showing the date upon which each item was paid, is hereto attached marked `Exhibit B,' and an itemized statement showing which of the items and sums shown in Exhibit B were paid by the said Lovejoy is hereto attached marked `Exhibit C,' and both said exhibits are attached hereto and made parts hereof."
Appellant Ewing has filed his motion for rehearing, and also a motion asking us to find that the allegations above set out are uncontroverted facts. This we decline to do. It will be observed that the effect of such allegation is to allege that both plaintiff Schultz and Lovejoy paid into the enterprise mentioned $28,415.29; that of this sum Schultz paid $17,769.53; and that Lovejoy paid $7,123, whereby Schultz paid for Lovejoy the sum of $10,645.76. These allegations present absurd contradictions, for when you add together the sum of $17,769.53, alleged to have been paid by Schultz, and the sum of $7,123, alleged to have been paid by Lovejoy, you have only the sum total of $24,892.63, and not $28,415.29 as alleged. However, it is alleged that Schultz paid for Lovejoy $10,645.76, and in addition thereto interest thereon at the legal rate. It is then alleged that an itemized statement of the items paid by both parties is attached to the petition marked "Exhibit B," and also an itemized statement showing which of the items and sums shown in "Exhibit B" were paid by Lovejoy, marked "Exhibit C"; that both of said exhibits are attached to the petition and made parts thereof. These allegations are ambiguous and obviously incorrect. When we look to "Exhibit B," it is shown that every item thereon, amounting to $28,415.29, was paid *Page 632 by Schultz alone, and that none of the items therein are found in "Exhibit C," which is shown to be the items paid by Lovejoy, which amount to the sum of $7,123.77. The total of these two exhibits is $35,539.06. When the petition is read as a whole, we think it clearly appears that plaintiff intended to and in fact did allege that he paid into the enterprise for Lovejoy the sum of $10,645.76. The allegations above referred to were not excepted to by defendant.
The undisputed testimony of Miss Malevinsky was that the sum of $10,125.76 was advanced by Schultz to Lovejoy, and this together with interest thereon was the amount of the judgment rendered by the court. Appellant Ewing made no contention in the trial court, nor in this court until upon motion for rehearing, that the pleading and evidence were not sufficient to support the finding that Schultz had advanced to Lovejoy the sum of $10,125.76 as found by the court. As before stated, the amount advanced by Schultz to Lovejoy was not a disputed question until, for the first time, on motion for rehearing in this court. The defenses urged by appellant Ewing in both courts were based upon wholly different grounds from the contention now made with reference to the amount advanced by Schultz to Lovejoy.
Both the motions for rehearing and for additional findings of fact are overruled.