
    John P. Felts et al., Resp'ts, v. Lester Clapper, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    1. Trial—Affirmative of issue.
    The complaint herein alleged a sale of pork to defendant; that it was not fully paid for and claimed for a balance; the answer consisted of a general denial, and alleged payment of all pork bought of plaintiffs. Held, that plaintiffs had the affirmative of the issue, and were properly allowed to open and close.
    3. Pleading—Parties.
    There was some evidence that the property sold belonged to both plaintiffs, and it seemed undisputed that at the time of the sale it belonged to both. Held, that a nonsuit on the ground of misjoinder of parties plaintiff was properly denied, and the question of ownership left to the jury as a question of fact.
    Appeal from judgment of the Columbia county court, affirming judgment of a justice in favor of plaintiffs.
    
      Plaintiffs’ complaint alleged, in substance, that plaintiffs were, before the commencement of the action, joint owners of a number of hogs and a quantity of dressed pork, which they sold and delivered to defendant at an agreed price, and that on account of such transaction defendant was indebted to them in the sum of fifty dollars.
    The defendant's answer: First, denied every allegation in complaint ; second, alleged “ that he has fully paid for all pork ever purchased by him of plaintiff.”
    Plaintiffs were farmers, and plaintiff Felts worked the farm of the other plaintiff on shares, each owning one-half of this pork at the time of its sale and delivery to defendant, who was a meat peddler.
    The pork amounted to $290.49, and the payments thereon, as sworn to by Felts, amounting to $240.49, are not contradicted by defendant, except that defendant claims to have paid fifty dollars on February 18, 1891, which Felts denies.
    Felts testified that on April 1, 1891, he settled with Collins, and that the latter had his share of the pork money.
    
      E. R. Harder, for app'lt; E. R. Peck (W. C. Daly, of counsel), for resp’ts.
   Mayham, P. J.

This is an appeal from the judgment of the county court of Columbia county, affirming the judgment of a justice of the peace.

The first point made by the appellant is that the justice erred in refusing to admit the defendant to open and close the case on the grounds that he had the affirmative of the only issue. The action was to recover for goods sold and delivered, and the answer contained a general denial of the allegations of the complaint, and put in issue the question of sale and delivery as well as that of price and payment

Upon the pleadings, therefore, the plaintiff had the affirmative of the issue, and the justice was right in giving him the right of opening and closing the case.

It is also objected by the appellant that there was a misjoinder of parties plaintiff,and that for that reason the justice erred in not non-suiting the plaintiffs on the trial. There was some evidence that the plaintiffs owned the property sold and for which this action was prosecuted together, and enough, I think, to uphold the verdict of the jury upon that subject; and the rule is universal, that when the evidence upon a disputed question of fact is sufficient to sustain the verdict of a jury on such disputed fact, it is the duty of the trial court to submit such question of fact to the jury.

1 think that that question was one of fact in this case, and was, therefore, properly disposed of by the justice.

The evidence seems undisputed that at the time of the sale of this property to the defendant, it belonged to both the plaintiffs.

We have carefully examined the objections and exceptions by the defendant to the ruling of the justice in the receipt and rejection of evidence on the trial, and find no error for which this judgment should be reversed.

Judgment affirmed, with costs.

Putnam, J., concurs; Herrick, J., concurs in result  