12 Mont. 248 | Mont. | 1892
Before proceeding to the consideration of the assignments of error made by appellant, some questions of practice, relating to the record, must .be considered. Respondent’s counsel contend that the assignments of error on motion for new trial should not be noticed on this appeal, because the notice of intention to move for new trial is not incorporated in the statement of the case, and not being part of the judgment roll, nor included in a bill of exceptions, the notice of intention is improperly inserted in the transcript. The transcript contains a copy of the notice of intention to move for a new trial in this case, showing an acknowledgment of service thereof upon counsel for respondent. The notice of intention to move is the basis of that proceeding, and must set forth the ground upon which the motion will be made, and- “ whether the same will be made on affidavits, or the minutes of the court, or a bill of exceptions, or a statement of the case.” (Code Civ. Proc. § 298.) It has been held in Montana that such notice of intention is an indispensable part of the record on appeal from an order overruling or granting such motion. (First Nat. Bank v. McAndrews, 5 Mont. 251; Gum v. Murray, 6 Mont. 10; Rutherford v. Talent, 6 Mont. 112.)
But the precise point raised by respondent does not appear to have been heretofore determined in this jurisdiction. The Montana cases, supra, appear to have turned upon the point that the notice of intention to move for a new trial was entirely absent from the record. Respondent’s counsel cite California cases (Hook v. Hall, 68 Cal. 22; Girdner v. Beswick, 69 Cal.
It will be further found upon an investigation that the cases from California, cited by respondent, were decided after the adoption of the Code of 1874, which contained provisions different from the former California Practice Act, and those of our Practice Act on this subject. Mr. Hayne refers to this change, and shows that under the later provisions of the California Code the courts were not warranted in holding that the notice of intention to move for a new trial was properly a part of the record, unless made so by being inserted in a statement or bill of exceptions used on the hearing of the motion: whereas, under the former statute, more nearly like ours at present, the practice was otherwise. (Hayne on New Trial and Appeal, § 168.) It is apparent that if the motion is made on affidavits alone, under the provisions of our statute, no statement of the case or bill of exceptions would be necessary to present the matter in the court below, or in the appellate court. The notice of intention to move would of course be necessary to such proceeding. (Code Civ. Proe. § 298, and Montana cases, supra.) On appeal from the order, “the appellant shall furnish the court with a copy of the notice of appeal, undertaking or undertakings on appeal, the judgment or order appealed from, and a copy of the papers used on the hearing in the court below, such copies to be certified in like manner to be correct.” (§ 438, Code Civ. Proc.) There might in some cases be difficulty in ascertaining what “papers were used on the hearing in the court below,” if contention should arise concerning that point, but that matter could be made certain by a certificate of the judge who heard the motion and made the order setting forth the papers used (Walsh v. Hutchinson, 60 Cal. 228), but no such contention is involved here.
It is further contended by respondent that the instructions given by the court to the jury on the trial should not be reviewed on this appeal, for the reason that the certificate of the judge who settled and allowed said statement certifies “that the foregoing statement on motion for a new trial is a full, correct, and true statement of the evidence in the foregoing case, and is hereby allowed.” Several specifications of error set forth in the statement are predicated on the instructions, and the instructions appear to have been inserted in the statement last preceding the certificate of the judge. The statute provides that, “when settled, the statement shall be signed by the judge or referee, with his certificate to the effect that the same is allowed.”
The main proposition in this case presented by appellant is that the evidence is insufficient to justify the finding of the jury, which the court approved, and adopted as its finding. On this branch of the investigation the case appears to be somewhat singular. Recurring to the complaint it is observed that the facts therein averred, whereby the alleged copartnership relation between plaintiff and defendant arose, are very meager. The complaint alleges that it was agreed between plaintiff and defendant, at Port Arthur, Canada, in May, 1887, that-they “would thereafter enter into copartnership between themselves for the purpose of carrying on said business,” which is described; and “that it was agreed by and between them that the profits accruing in and from said business should be divided equally between plaintiff and defendant.” It is next alleged “that in pursuance of said contract,” and “in accordance therewith, plaintiff and defendant thereafter in August, 1887, entered into and formed a copartnership between themselves in the aforesaid business of dealing in” said goods at Great Falls, “and did then and there, at the time and place last afore-mentioned, in pursuance of said agreement, and in accordance with its terms, engage in and carry on and conduct the aforesaid business of dealing in,” etc., “under the firm name and style of John Sinclair,” and continued to carry on said business until about February 6, 1891.
The allegations subsequent to the first paragraph, in referring to the terms upon which the alleged copartnership was finally formed, and commenced its existence, states that in pursuance of the first agreement, and in accordance with the terms thereof, the parties entered into copartnership and established said business. Looking back to see what the terms and conditions of said copartnership were alleged to be, it is found that no terms
Proceeding to the statement of the evidence, it is found that plaintiff is the only witness introduced on his behalf to prove the allegations of his complaint. He testifies, in effect, that he met defendant Sinclair at the time and place stated in the complaint, and that in conversation defendant stated to plaintiff that he, Sinclair, was just out of business, and spoke about Great Palls, and plaintiff told defendant that Great Palls was going to be a good opening for a liquor business, and that plaintiff would go there if he had any means, but he had no money; that defendant said he could raise $600 or $700, “and wanted to know if we could get a start in a small way on that amount, and said, ‘If you will go up there with me, I will give
Plaintiff further testified: “There never was a word of salary mentioned between defendant and me in any conversation. I had some difficulty with him before quitting. I told him it was not satisfactory for me to be in company with any one with whom I could not agree; I said I would choose a man, he could choose a man, and let them take a third man, and whatever they agreed upon I would abide by. He said: ‘No, I will give you $100 a month as long as you have been with me.’ I said, ‘No, sir, I will not accept it.’ Nothing further was said at that time. That was the first time salary was ever mentioned. I got money from Sinclair after that, under the following circumstances : I went into Sinclair’s some few days after this conversation, and said I wanted some money; I hadn’t any. He waited a few minutes and went out, and came back in about half an hour, and sat down and wrote a check and handed it to me. I did not have any words with him because I did not want any argument with him. He is a man that don’t reason, in my opinion. Everybody is wrong but himself. I took the check and walked out. Nothing was said between us at that time. I went to the Merchants’ National Bank. The check was for f1,650. When I took it to indorse it, I saw on the margin the words, ‘in full for wages,’ or words to that effect. He didn’t call my attention to the provisions of the check. I drew the money on the check. I was out of money and needed money at that time.”
Plaintiff further testified that while he was in said business with defendant he kept the books thereof, and used to give defendant a statement every month; that he told defendant how many goods were bought and sold; that in ordering goods, plaintiff' did not give orders without consulting defendant Sinclair; that since the commencement of said business he had personally made out the orders for goods; that said orders were always made in the name of Sinclair, personally, by plaintiff, and plaintiff signed defendant’s name to such orders, “per Arnold.” Copies of such orders were introduced in evidence, on cross-examination of plaintiff, identified by him as his writing, and in all cases the same were made out in the name of John
The check of $1,650 paid by defendaut to plaintiff, as above mentioned, was introduced in evidence. The same bears date February 9, 1891, was drawn upon the “Merchants’ National Bank of Great Falls, Montana,” and reads, “Pay to P. Arnold,, or order, sixteen hundred and fifty dollars. $1,650.” “For wages in full to date.” Signed, “John Sinclair.” Indorsed, “Peter Arnold.” “Paid February 9, 1891, Merchant’s National Bank of Great Falls, Montana.” Plaintiff acknowledges the receipt of said check, and the indorsement thereof; that he obtained the money called for thereby, and that he saw the words, “for wages in full to date,” written upon said check, before he obtained the money thereon; that he did not go back
On cross-examination, plaintiff testified that: “ The first time I made mention to Sinclair about claiming a partnership in his business was about February 1? 1891. We had had no arrangement since we left Port Arthur. There was no mention made about business or partnership or salary or anything else, anywhere. The occasion of dissolution of this peaceable partnership between Sinclair and myself was that there was a certain party coming there (he objected to somebody getting goods there), and I told our bartender to sell to anybody who had the money to pay for them. Sinclair objected to this party coming there, and I' said, ‘As long as he has got the money, let him have the goods.’ The clerk was Dick Williams, and that was about the last of January. I think Sinclair went away after that row — the next day after. I staid there until after his return — a week or ten days, perhaps two weeks. I told him in the mean time I had got quite an order in for goods, and this Williams was drunk all the time, and had had a fight, and I told Sinclair we had better get another man. I said, ‘He is a good man to work, but we can’t trust him. He is out every night, and getting into a fight.’ That that morning he was drunk, and couldn’t do any work. Then Sinclair began to pitch into me;” that this was the first time there was ever any contention between plaintiff and defendant.
On being asked why, if plaintiff claimed to be an equal partner in said business, he did not discharge said Williams from the employment of said firm without consulting Sinclair, plaintiff answered, saying: “I did not want to discharge him without getting another man. I said, if he knew of a good man, we had better get him.” On being questioned, on cross-examination, about his alleged offer to arbitrate the differences between plaintiff and defendant, plaintiff said: “ This conversation took place in the store. I think none were present but Sinclair and myself. Dick, the bartender, may have been back behind the bar. It took place before I got the last check. The conversation was had in a moderate tone of voice, just as I am now talking. Sinclair said, ‘No,’ and that was all. I
Plaintiff further testified, on cross-examination, that “on or about the twenty-ninth day of May, 1890, I may have had a conversation with W. H. Race, a justice of the peace of this town, as to who composed the firm of John Sinclair, or whether or not it was a firm. He might have asked me the name of the firm, and I might have said, John Sinclair. I remember ■ of bringing a suit against the firm of Talgo and Anderson in the name of John Sinclair, on one of our bills.” The undertaking on attachment in said case was introduced in evidence, and shows that the case was brought in the name of “John Sinclair, plaintiff,” and said Peter Arnold, the plaintiff in this action, appears as one of the sureties on said bond. The affidavit for attachment was also introduced, and shows the name of “John Sinclair, plaintiff,” and it is recited therein that: “ Peter Arnold, being first duly sworn, says he is agent for the plaintiff in the above-entitled action.” Said affidavit appears to have been subscribed and sworn' to by Arnold, the plaintiff in this action. On being questioned as to the reason he brought said action in the name of John Sinclair alone, without stating his own name as a plaintiff in interest, or a member of the firm of John Sinclair, if it was a firm and he was a partner in said business, the plaintiff in this action, Arnold, said: “The explanation I have as to the reason why I swore that I was agent of John Sinclair is that we wanted to save expenses. 1 never looked at or thought particularly about it. That was the way I did it. I do not know but Judge Race suggested himself to do it that way. I certainly signed it, and I see it was sworn to, but I never looked to see what it was. I am not quite sure whether or not I had any conversation with W. H. Race, or he with me, previous to the first writ of attachment in the court of ¥. H. Race, in relation to who composed the
Defendant Sinclair was sworn, and testified on his behalf to the effect that he had heard plaintiff’s testimonyas to the conversation and agreement between himself and plaintiff at Port Arthur, Canada, in relation to going into the liquor business; that very little was said on that subject between them; they were talking together of Great Falls, when plaintiff said he would like to go there, and defendant asked him “if he had money enough to take him up, and that was about the sum and substance of the conversation;” there was no other conversation had then about the business; that plaintiff went to St. Paul, just as he related, and defendant went there a little later; that no-'arrangement was made at all between plaintiff and defendant at St. Paul about plaintiff’s coming to Great Falls; that plaintiff was about with defendant while the latter was In St. Paul; and defendant learned there that plaintiff did not have money enough to take him to Great Falls; that defendant bought and paid for a suit of clothes for plaintiff; that neither at Port Arthur, Canada, nor any other place, did defendant have any conversation or agreement with plaintiff, whereby defendant agreed to take plaintiff in as a partner in said business on condition that defendant was to furnish the money for the business and give plaintiff one half of the profits thereof; that plaintiff Arnold was merely acting for defendant as clerk, but no arrangement was ever made as to what compensation Arnold was to receive, prior to the final settlement, when defendant paid him said check for $1,650; that after said settlement defendant learned for the first time that Arnold claimed an interest in said business; that defendant heard plaintiff relate a conversation in which he claimed that he offered to arbitrate with defendant as to a settlement; that defendant could not recall just what was said at that time, but that “Arnold had not at that time, or any time previous, made any claim whatever to any interest, or intimated to me that he
On cross-examination, defendant testified substantially the same as in chief, so far as he was questioned. He goes further into details as to the reasons he had for discharging plaintiff from his employ, as he claims, which reasons do not concern this inquiry. He further stated that he paid Arnold’s fare from Helena to Great Falls, when on their journey from St. Paul to Montana, and also paid for some of his meals while on that journey.
W. H. Eace was called as a witness for defendant, and testified that on May 29, 1890, while he was justice of the peace at Great Falls, within and for Cascade County, the plaintiff in this action, Arnold, brought the suit referred to above in his court; that he, Justice Eace, supposed said liquor business was carried on by a firm; he did not know why he had this impression ; that when said suit was brought he asked Arnold who composed the firm, and Arnold replied, “ John Sinclair.” The justice said in his testimony: “The reason I gave him for asking that question was simply that the names of all interested parties must be incorporated in the summons.” That thereafter quite a number of suits were brought by Arnold, and the papers were always made out in the name of John Sinclair, the
Defendant having rested in his proof, the plaintiff again testified briefly on his own behalf, in rebuttal, and said: “I heard the testimony of Sinclair, giving the reason why he discharged me, and the word, * discharge,’ was not used at all. He gave me to understand that I should have $100 a month if I chose to stay, but I did not accept. He did not say anything at all to indicate that he wanted me to go.” He then goes into some explanation as to the facts which defendant had asserted as reasons for discharging him. This matter, however, as before asserted, is not material to our inquiry. Plaintiff stated that he did not remember whether defendant paid for a suit of clothes for him at St. Paul, or not, but said, “ I may have said, ‘ Pay for both suits,’ or something to that effect. I had money, but not enough to put into the business. I told him I had about enough money to pay my expenses to Great Palls. I think he paid the stage fare from Helena. I stopped three weeks in St. Paul, waiting for him, which took some of my means.” Plaintiff gave no testimony in rebuttal in reference to what the justice of the peace testified.
The testimony in this case shows that the defendant is corroborated by plaintiff in every material fact testified to, except on the one assertion of plaintiff, that at Port Arthur, Canada, defendant told him that, if he would go with defendant to Great Palls, defendant would give him one-half interest in said business. Plaintiff testified, on cross-examination, that after the conversation at Port Arthur there was never any other conversation or arrangement about said business between plaintiff and defendant. In this connection, plaintiff said that “ the first time I made mention to Sinclair about claiming a partnership in his business was about February 1, 1891. We had no arrangements since we left Port Arthur. There was no mention made about business or partnership or anything else, anywhere.” This corroborates defendant, and refers the dispute as
All the conduct of plaintiff while engaged in said business, for more than three years, contradicts his testimony to the effect that he was a copartner therein, or an owner of one-half interest in the profits thereof. According to his own assertions he was a man of mature years, and of long experience in business, and defendant was “a peculiar sort of man,” and of arbitrary temperament. Plaintiff was constantly engaged in attending to the affairs of said business during that long period; kept the books, gave orders for goods, brought suits to enforce collection, and during this whole period carefully avoided doing anything, or asserting anything, wherein he assumed the attitude of a copartner or owner therein. Moreover, by conduct and by expression, he asserted the contrary. In solemn proceedings, when the question was put to him as to “who composed the firm,” he replied, “John Sinclair,” and Justice Pace testified that “the reason I gave him for asking that question was simply that the names of all interested parties must be incorporated in the summons.” In this the justice was right, and sought to have the proceedings instituted according to law. (Code Civ. Proc. §§ 15, 16.) Arnold also assumed the character of surety for plaintiff Sinclair in that proceeding, which was improper if he was a party in interest. But this was not all. In his affidavit for the attachment, he deposes that he was agent for Sinclair, the plaintiff in that action. This occurred in May, 1890, over two and one-half years after the commencement of said business, and the case was brought to make a collection for said business, in which Arnold now claims to have been a copartner from its commencement. He explains in his testimony that his attention was not called to the contents of
When plaintiff had occasion to draw á cheek on the funds of said business in the bank he was unable to do so, without apparently exceeding his authority, or without going to the banker and arranging to have the check honored, on the faith that Sinclair would ratify the act of drawing it. Under these circumstances plaintiff is never found to have intimated that he was a copartner and owner of one half of the profits of said business. When plaintiff had a controversy with the bartender he did not uiseharge him. However, it might have been the conduct of a prudent man, even though he was a partner in interest, to have consulted the other member or members of the firm in that respect. But, when he went to Sinclair about this matter, he did not demand that said bartender should be discharged. He did not insist upon it as a copartner who had
Counsel for respondent have made an able presentation on his behalf, considering the brittle material they had to work upon when it came to the merits. They urge that this is a case of conflict of testimony, and the triers before whom the witnesses appeared must decide between them. Where is the conflict? Only as to what expressions were used by these parties at Port Arthur. As to that, does not all of plaintiff’s conduct for over three years contradict him? Did he not expressly, by assertion to Justice Pace, when the matter was brought squarely to his attention, in a matter which demanded the truth as he understood it, in effect, contradict what he says was agreed at Port Arthur? Did he not by affidavit, in effect, contradict that by that agreement and by subsequent acts he was made a joint owner? Defendant is corroborated by even the plaintiff substantially on every point, except the one sentence which is attributed to defendant in conversation at Port Arthur, and plaintiff, by conduct, by expression, and by silence when a man naturally would have spoken, during a period of more than three years, contradicts that. It is needless to dwell further on the condition of this case brought out by the testimony. It all tends one way in fact when the record of the evidence is read and considered, and we have no hesitation in affirming that the verdict returned by the jury and adopted by the court is without evidence sufficient to justify it.
We observe that in addition to adopting the finding of the jury the court found, among other things, “that on or about February 1, 1891, plaintiff withdrew from said firm and copartnership, and thereof gave defendant notice.” We have quoted from plaintiff’s own testimony, showing that the proof is just the contrary of that finding. It is further found by the court that: “Upon the withdrawal of said plaintiff from said firm, he demanded of defendant an accounting and settlement of said copartnership affairs and business, and offered to account and settle the same with defendant, but that defendant then refused and yet refuses to account or settle the same or any part thereof.” The record is not only barren of testimony to
Some argument has been put forward in this case as to whether, by reason of section 250 of the Code of Civil Procedure, the court was not bound by the verdict of the jury, and thereby compelled to accept and proceed upon it until a formal proceeding was had to vacate the same. Even though under that statute the parties had a right to demand that the issue of the existence of a copartnership between plaintiff and defendant respecting said business be submitted to a jury (a proposition which we do not now decide, because it is unnecessary in this case), still we do not find anything in that statute which indicates an intention to change, or trench upon, the equity functions of the court respecting the finding of the jury on an issue presented to it in an equitable action. If such intention was manifest in said statute, the question would then arise whether the legislature had power, considering the organic act under which the legislature existed when said statute was passed, to 'make such change in the equity power of the court; and the further question whether under the provisions of our Constitution such a statute could have effect. But no such intention is expressed directly, and it would seem to be a violent presumption to conclude that the legislature intended, in the absence of direct expression to that effect, to change the long-established principles which governed courts of equity jurisdiction in dealing with the finding of the jury upon an issue presented to it, in an action relating to the equitable rights
The conclusion of this court is that the finding of the jury should have been set aside by the judge, and upon the evidence he should have found that no copartnership relation was proved to have existed betweeen plaintiff and defendant in respect to said business, or the proceeds or property thereof. This not having been done, it is our opinion that the court should have set aside the verdict and finding on the motion for a new trial, when the matter was formally presented, with opportunity to fully review the evidence. Upon this appeal appellant asks that relief, and in our opinion it surdy should be granted. All the findings of the court subsequent to the approval of the verdict of the jury are auxiliary to and rest upon the verdict, and necessarily fall with it. So that the appointment of a receiver in said action will then rest solely upon an ex parte showing, which upon trial has been found wanting in proof to sustain it. In such a case the appointment ought not to be allowed to stand where the proceedings virtually destroy the business, and result in great and unjust damage, if the action is not well founded, unless the plaintiff assumes effectually a position of responsibility to answer for such damage, in case the action is found to be “without sufficient cause.” (§ 231, Code Civ. Proc.)
The order of this court will therefore be that the finding of the jury, approved by the court, be set aside and vacated; that the decree entered thereon be reversed, and a new trial granted; and, further ordered, that unless a good and sufficient bond has heretofore been filed by plaintiff for the appointment of a receiver in said action, as provided in section 231 of the Code of Civil Procedure, plaintiff shall, within ten days from the filing of the remittitur and this order, make and. file with the clerk of the court below a good and sufficient undertaking in double the amount of the value of the property belonging to said alleged copartnership firm, as stated in the complaint, with good and sufficient sureties, to be approved by the court in which the action is pending, and conditioned as provided in section 231 of the Code of Civil Procedure of this State. That, in default of filing such undertaking within the time prescribed in this order, the court below is directed to cause the receiver in
Reversed.