Garnier v. Gebhard

Ray, J.

The agreement,as stated in the complaint, is for the sale by John B. Gamier of “his-whole interest,” not in the'partnership, but “in the brewery at New Lawrence-burgh, Indiana, consisting of stock on hand, personal property, real estate, &c., &c. (lots- Nos. 5, 6, 7, 8, and 9,), for the sum of thirty-four thousand dollars.”' There is no averment of any mistake or error in drafting- the- instrument, and therefore we must be controlled by its. plain language. This sale of the appellant’s, interest in the brewery included certain real estate connected with the building- occupied as a brewery, the stock on hand, and the persona? property used in the manufacture, storing, and disposal of the products, of the brewery. Beyond this it is impossible by construction to carry this: agreement. It does-- not pui-port to dispose of the moneys-on hand or on deposit be-, longing to the-partnership, or of the bills receivable, or accounts in favor of the firm; nor do the purchasers assume to pay from the assets the debts’-owing-by the partnership.

The second paragraph of the-answer avers, that after the execution of the agreement, the. appellant delivered over to the appellees the moneys, bills, receivable, &c., belonging to the firm. This averment presents not a question of law, but one of fact. The appellant had the power-to- make a gift of the property or of his interest therein and his right of possession thereof. The demurrcr-to-this.piarag.raph; was; therefore properly overruled.

W. S. Holman and J. Schwartz, for appellant.

The reply to tills paragraph of the answer denies the delivery of any of the choses in action or personal property, and proceeds to reassert the claim as stated in the complaint. The demurrer to this reply presented the question which had been already tendered in the complaint, and the construction we have placed upon the contract sustains the reply. This demurrer should have been overruled.

Judgment reversed, and cause remanded, with directions to overrule the demurrer to the reply to the second paragraph of the answer. Costs here for appellant.