Demple v. Carroll

ON PETITION EOR REHEARING.

Beard, Justice.

Plaintiff in er'ror has filed a petition for a rehearing in which it is claimed we did not give proper consideration to the alleged errors assigned in the motion for a new trial. The main contention now is that we did not consider the objection that the- judgment was excessive and should have been for only $500, if for any amount, for the reason that Garroll was the owner of one-half of the capital stock of the Sheridan Manufacturing Co. The claim of plaintiff below, as we- understand' the pleading, was that the company was- indebted to Metz in the sum of $1,000, and not having the-money to pay Metz, Carroll advanced it for the company;' that the company failed to repay him and still owed him-that amount when Demple executed'the instrument sued on. It was the company (a corporation) which was his debtor and not the stockholders, and the fact that he was a stockholder did not make the company any less the debtor and him its creditor than if he had been an outside party. It was the debt of the company to him that Demple assumed. The fact that he borrowed'the money and when he renewed the note another stockholder became surety on the note did not change his liability, or the company’s obligation to him; and the evidence sufficiently shows that he paid the full amount. The amount of the company’s indebtedness to him at the time of the transaction with Demple and at the time of the trial was $1,000, which Demple had assumed. The judgment therefore was not excessive.

*459In the brief in support of the petition for rehearing it is stated, “Although the contract set out in the petition signed by Demple appears to be the transaction of Demple, it is disclosed from the testimony of Demple that he was acting as agent for another person in the purchase, and from the testimony of the plaintiff, Carroll, it also appears that he was aware of that fact, and from the testimony of both, it is disclosed that Demple was not the real party in interest.” On that question it is sufficient to say, that no such issue was presented by the pleadings; and we have again carefully reread the entire testimony of Demple and no such condition is even suggested. He repeatedly stated that he made the contract, and in answer to the following question propounded by his own counsel, “Did you examine the books since?” answer, “No, because I sold out that stock again right the day after that you know. I am not interested in the mill at all.” His own testimony would have effectually disposed of any question of agency had such an issue been presented by the pleadings. Not only so, but in the first paragraph of the answer it is admitted “that defendant, on or about the 16th day of May, 1911, purchased from plaintiff plaintiff’s interest and shares of stock in the Sheridan Manufacturing Company.”

Other questions with reference to the alleged newly discovered evidence, the exclusion of certain testimony, and the refusal of the court to permit the defendant to amend his answer during the trial, have been argued in the brief on petition for rehearing. They were considered and decided in the opinion (133 Pac. 137), and on a re-examination of the record the views expressed in the opinion are adhered to. As was there said, we think the case w.as fairly tried upon the issues presented by the pleadings, and the judgment sufficiently supported by the evidence. A rehearing will therefore be denied. Rehearing denied.

Scott, C. J., and Pottsr, T., concur.