Tusch v. Cummings

CROCKETT, J. — The grounds principally relied upon for a reversal of the judgment are, that the court erred, first, in excluding the testimony of Wade, offered to show that the partnership between White and Wade had been dissolved before the assignment of the note to G. W. White; second, in finding that the plaintiff had acquired the interest of Wade in the note, and rendering a judgment for the plaintiff therefor.

On the first point it is sufficient to say that the complaint was verified, and not only alleged the partnership, but that [783]it was an existing partnership at the commencement of the action. This allegation was not denied in the answer, and is therefore to he deemed admitted. The defendant has no right to controvert a fact admitted by the pleadings.

The partnership being admitted, and there having been sufficient proof that the note was executed to the two copartners for a partnership demand, and was assigned by one of them, in the name of both, to G-. W. White, by whom it was assigned to the plaintiff, the court properly held that the plaintiff had acquired the title, and was entitled to judgment for the whole amount due on the note.

We deem it unnecessary to notice the other points discussed by counsel.

Judgment affirmed and tbe remittitur to issue forthwith.

We concur: Belcher, J.; Niles, J.; Rhodes, J.