Zapple v. Rush

¶1DEMtiRKER: lefective/ In sustaining this demurrer, the court below, as it seems to us, misapprehended the tenor and purpose of defendant’s answer. The demurrer strikes at and objects to the whole of the. second division. . And yet there is nothing from which, *101by implication, even, it can be gathered that the charges for the rent of the slaughter-house and damages thereto, were in any manner connected with the business of the parties as partners. For aught that appears, defendant owned the house in his own right, and plaintiff was liable to him as an individual, to the amount claimed. The suggestion by counsel that the demurrer was only sustained so far as it struck at the partnership matters, finds no support in the record. It was sustained as to the whole of this division of the answer. By its language it strikes at 'he whole, and thus broadly was it sustained.

¶2The other division of the answer, in effect, admitted the correctness of plaintiff’s demand. If this ruling on the demurrer had been corrected, the judgment for plaintiff legitimately followed. This ruling, however, left the defendant without any part of his set-off, or right to be heard upon it, and, as it was erroneous, the judgment must be reversed.

¶3Reversed.