
    Lemuel Bethel v. Samuel Woodworth and David Egleston.
    In an action by A. and B. to recover an indebtedness from C. upon his verbal agreement to assume and pay their claim against D., E. and F., in consideration of a sale and conveyance of lands by A. and B. to C., after judgment in favor of A. and B. for the amount of said claim against O. Held:
    1. That the fact of such undertaking not being mentioned in the recitals contained in the separate receipts of A. and B., respectively given by them, of the partial payment and the consideration of their respective conveyances, was not inconsistent with the validity of the alleged verbal agreement.
    2. That a defective statement in the petition of the cause of action, is not a cause for reversal of the judgment, if the facts stated in the petition, when well stated constitute a cause of action.
    3. That the verdict or finding of the court after judgment is always presumed to have been on proof of the alleged facts and necessary circumstances to sustain the truth of such verdict or finding, upon which the judgment has been so rendered.
    Error to the district court of Athens county.
    The original action was brought by Woodworth and Egleston against Bethel, before a justice of the peace, for the recovery of the sum of $16.62. The defendant demanded a jury, and by agreement of the parties three jurors were called and sworn as a jury to try the case. The plaintiffs having offered their evidence, the court, on motion of the defendant, discharged the jury, and entered a judgment of nonsuit against the plaintiffs, who thereupon appealed the case to the court of common pleas.
    The plaintiffs filed their petition stating that, the defendant, on the 1st of December, 1856, was indebted to them in the sum of $16.62, upon a contract of the following import: The plaintiffs had each married an heir-at-law of one Arunah Judd, who had died intestate, seized of an equitable estate in certain lands ; and the plaintiffs, at the instance and request of all the heirs, proceeded to acquire for said heirs a perfect legal title, at a necessary cost and expense of a certain sum of money by them for that purpose paid; being, in an equal apportionment thereof to the respective heirs, the sum of $5.54 chargeable to each heir’s share of the land; and that the defendant shortly afterward, being desirous of purchasing said land, and also the claim of the plaintiffs for money so expended, as a lien upon the land, agreed to pay a certain sum of money to the plaintiffs respectively, for the two shares so held by the wife of each of said plaintiffs; and also to pay to the plaintiffs the said sums of $5.54, chargeable to each share as its proportion of the money so paid and expended by plaintiffs, and also to pay to them the further sum of $5.54 so chargeable on each share, for each and every other share of the land which he, the defendant, should succeed in obtaining from the other heirs, or any of them. The petition states that the plaintiffs, in consideration of said undertaking of the defendant, with their wives, executed deeds of conveyance of their said two shares of the land; and that the defendant also obtained a conveyance to him in fee simple of three other shares of the land, from the heirs respectively entitled thereto; whereby the defendant became liable to pay to the plaintiffs $5.54 for each of said last mentioned three shares so obtained from said heirs, amounting to the said sum of $16.62; but that the defendant, although requested to pay the same, neglects and refuses so to do.
    The defendant in his answer thereto, denies each and all of the material allegations contained in said petition.
    The case was submitted to the court upon the proofs made by the respective parties, and a judgment was rendered in favor of the plaintiffs for the amount of their said claim against the defendant, and for costs.
    A bill of exceptions was taken by defendant’s counsel, from which the following facts appear of record:
    The plaintiffs on the trial gave in evidence a writing of which the following is a copy: “ Received of Lemuel Bethel, five dollars in part pay for my interest and the interest of my wife in the west half of the northwest quarter section No. 26, in township No. 11, range No. 14, which interest is the equal undivided ninth part of the land, which I agree to convey to said Lemuel Bethel by quitclaim deed of myself and wife, for seventy dollars. Deed to be made when fifty dollars is paid, .and Bethel’s note executed to me for the balance of twenty dollars. Nelsonville, Sept. 17, 1856.” And also gave evidence that a similar agreement in writing was, at said date, signed by each of said plaintiffs; and that each with his wife had afterward respectively executed a deed to defendant conformably to said written agreement; and also offered evidence tending to show that at the same time the defendant agreed to pay to the said plaintiffs the additional sums of $5.54 for each of the other heirs or owners whose right should be purchased by him, as the pro rata share of money so expended by the plaintiffs, belonging to each heir to pay. To which last evidence the defendant objected, as changing the terms of said written contracts; but the objection was overruled and the evidence admitted, and the defendant excepted.
    To reverse the judgment of the court of common pleas, the defendant below filed in the district court his petition in error, assigning for error—
    1. That the court erred in admitting the oral evidence of plaintiffs, varying the written contracts between the parties.
    2. That the facts set forth in the petition of the plaintiffs below are not sufficient in law to maintain the action against the defendant.
    3. That said judgment was given for the plaintiffs, when it should have been for the defendant.
    The judgment of the court of common pleas was affirmed by the district court, and a petition in error has been filed in this court to reverse this judgment of affirmance, as well as the original judgment of the court of common pleas.
    
      A. G. S. T. Brown, for plaintiff in error.
    
      John Welch, for defendants in error.
   Sutlu'R, J.

Did the district court err in not sustaining the assignment of errors alleged as a cause for reversing the judgment of the court of common pleas.

It is urged that the petition itself does not warrant the judgment rendered by the court of common pleas.

The sufficiency of the matters stated in the petition were not called in question in that court by demurrer; nor was the court, by motion, asked to require it reformed or improved in its structure. The assignment of its insufficiency, after judgment, can only, therefore, be sustained upon the ground that the facts contained in the petition, even if well stated, constitute no cause of action. It is true that the petition of the plaintiffs below does not state the agreement between themselves and the other heirs explicitly, in relation to the payment of their respective shares of the money by them so expended in procuring the title ; but the petition avers that the sum of $5.54 was justly due to the plaintiffs in respect of each of the several shares so owned by the heirs respectively. The petition speaks of this sum as a lien upon each of the shares in favor of the plaintiff, and avers that on the 1st of September, 1856, the defendant agreed to pay, not only a certain sum as. the price of the land, but to pay to the plaintiffs $5.54 for each share he should afterward obtain of the other heirs, as the agreed and recognized claim and lien of the plaintiffs. We are not, therefore, able to say that the petition does not contain a statement of facts sufficient to constitute a cause of action ; the deficit- of the petition is in the statement, rather than the fads constituting the cause of action.

But the principal assignment relied upon by plaintiff in error is, that the court admitted the parol evidence offered by the plaintiffs below, to vary the written contracts.

The record does not sustain this assignment. It was not upon the written contracts that the plaintiffs commenced their action. They sued upon a joint contract. The written receipts, and recital of the contract for the conveyance of the respective shares of each of the plaintiffs were several, and therefore, if even perfect memorandums of contracts, could not be offered in evidence to prove a joint right of action in favor of the plaintiffs. They only showed two several contracts, one in favor of each of the -plaintiffs; and in which his co-plaintiff had no interest. But no objection was mads by the defendant to those writings being given in evidence, and therefore no error appears upon the record in that regard.

The bill of exceptions does not assume to recite the evidence which was given in the court of common pleas. It is only stated that the plaintiffs gave in evidence tending to prove that at the time they executed their deeds the defendant verbally agreed to pay to the said plaintiffs the additional sum of $5.54, for each of the other heirs, or owners of said premises, whose rights should be purchased by him, as the supposed pro rata amount justly chargeable to each; and that the defendant objected to this item of evidence. What other and further evidence was offered and received without objection, the record does not inform us. In the absence of such information, the general rule applies, that error is never presumed upon a record. The verdict of the jury, and the finding of the -court, upon which final judgment is rendered, are always, in the absence of the contrary appearing upon the record, to be considered as true, and founded on legal evidence exhibited at the trial.

It is also suggested by counsel, in argument, that the record shows that the common pleas had no jurisdiction in the case, inasmuch as a jury was demanded and allowed by the justice of the peace.

It is sufficient to say, in reply to this objection, that inasmuch as the right of appeal is only taken away where “ the case is tried by a jury,” and for a demand less than twenty dollars, an objection could not have been made to the jurisdiction of the common pleas, and can not here prevail.

We perceive no error in the record, and the judgment of the district court will therefore be affirmed; and the case certified to the court of common pleas.

Judgment accordingly„

Scott, C.J and Peck, Gholson and Brinkerhoef, JJ., concurred.  