Brown v. O'Brien

4 Neb. 195 | Neb. | 1876

Lake, Ch. J.

In tlie court below, all the issues in this case, both of fact and law, were referred to and tried before a referee, whose report was confirmed and the case dismissed. Several exceptions having been taken by the plaintiff to the referee’s report, and overruled by the court, the main question for our determination is, were these exceptions well taken?

As to all the questions of fact, submitted to the referee, his report thereupon must have the same effect and be treated in all respects as the verdict of a jury. Civil Code, See. 300. The court has no right to set it aside unless it be manifestly against the weight of the evidence. Green v. Brown, 3 Barb., 119. Bearss v. Copley, 10 New York, 93.

We have looked very carefully into this record, and weighed the testimony, especially that of the plaintiff, but can see nothing which calls for a reversal of the judgment. It is unnecessary for us to recapitulate the evidence, or to incoiporate any portion of it into this opinion, for the reason that all the several objections to this report, urged upon our attention either in the printed brief or oral argument of counsel, go to the conclusion of law which the referee drew from a consideration of the entire testimony, as to the alleged partnership between the plaintiff and the defendant Boyer, in , the cultivation of the farm which the latter had rented and conducted in his own name.

We are of the opinion that there was a signal failure to establish the alleged partnership. The alleged interview between these parties in the winter or spring of 1872, at Omaha, in respect to the investment of the residue of the five hundred dollars, then remaining in Boyer’s hands, fell far short of doing so. It was altogether too indefinite, and uncertain, to have that effect. Neither did the management of the farm by Boyer tend, in the slightest degree, to show that he considered Brown as a co-partner with him in that business, or as entitled to any definite share in the crops raised.

We think that Boyer was simply liable for the money advanced to him by Brown, and not invested in cattle. We do not think that, under the testimony, Brown could have been held liable as a partner, for either the rent of the farm, or for any debt which Boyer contracted in its cultivation. Neither do we think, that, as against the creditors of Boyer, he should be permitted to bold tbe products of tbe farm, under a claim of partnership, based upon so fragile a case.

Eor these reasons we are of tbe opinion that tbe report of tbe referee should be affirmed, and a judgment rendered in conformity thereto. The other judges concur.

Judgment accordingly.