15 Kan. 495 | Kan. | 1875
The opinion of the court was delivered by
This was an action brought by the defendant in error in the district court of Saline county, to settle up a partnership between himself and Carlin. The history of the case is somewhat novel. First, a jury was impanneled to whose decision was referred the terms and duration of the partnership; then the matter was referred to' a referee, to state the account between the partners; and finally, a second jury was impanneled to pass upon certain claims of Carlin for damages resulting from breaches of the partnership contract. The novelty, or perhaps more correctly, the rarity of this triple proceeding, is no warrant for presuming it erroneous. Doubtless the entire case might have been submitted
It is insisted however, that this case does not come within the purview of the section quoted; that indeed the petition fails to state facts sufficient to-constitute a cause of action, and that therefore the demurrer filed to it should have been sustained. Here too we must differ with counsel. The petition alleged in substance the partnership, giving a copy of the written contract therefor; that the plaintiff paid in as capital a certain sum, the time of the commencement of the partnership, and of its termination; that during its existence plaintiff paid in for expenses and debts a large sum of money and property; that he had often sought a settlement with defendant, but that defendant refused to come to any settlement, and that upon such settlement a large balance would be found
A third matter- of objection is, that the verdict of the first jury was incomplete in not finding all the facts established by the evidence. It is sufficient answer to this, that it responded to the questions submitted to it by the court, and
Again, it is insisted that the court erred in its charge to the jury on the last trial. Counsel for Carlin thus state the question: “Then we have this state of facts: Donegan and Carlin were to keep 315 head of cattle on section 3, or that vicinity, in McPherson county, Donegan agreeing to furnish the means to carry on the business successfully. When, the winter sets in, Donegan turns in 200 of his own cattle, and in February the hay gives out, and no means to furnish more. The cattle are moved 20 miles by Donegan, against the wish of Carlin, and the advice of the foreman; the move results in damage.” Upon this the court charged — “but if you should believe that at the time the plaintiff, Donegan, determined upon the moving, and did move them, if he did so at all, there was such a condition of things and circumstances as would reasonably raise a question as to whether they ought to be removed or not, and that Donegan used his best judgment, in good faith, in deciding such question, then he would not be responsible, though loss might occur, unless such act should show gross negligence or ignorance.” Again: “ It is for you to say whether or not Donegan, in determining as to whether he should move the cattle or not upon any of the times mentioned in the testimony, was guilty of ignorance, as I have above defined it, and whether in the execution of the movement he was guilty of gross negligence.” The use of the adjective “gross,” in the last clause of these two instructions, is claimed to be erroneous. Donegan, it is insisted, is liable for all losses resulting from ordinary negligence in the management of the business of the partnership. The court followed this charge with a definition of gross negligence, and a correct one too, so that the jury must have gathered that if Donegan acted in good faith, and upon his best judgment, in determining upon the removal, he would not be responsible for losses resulting therefrom, although in carrying out such removal he omitted the care and attention which men of ordinary prudence would exercise in such a
