153 P. 1005 | Mont. | 1915
delivered the opinion of the court.
In 1912, Harvey Jones overdrew his account with the Flathead State Bank, of Poison, to the extent of $904, and this action was instituted against him and C. B. Ingham to recover the amount with interest. Ingham died and the executrix of his estate was substituted as a defendant. Jones defaulted, and the cause was tried upon issues raised by the complaint and the separate answer of the executrix. The only question for determination was whether Jones and Ingham were partners at the time the indebtedness was incurred. The inquiry was answered by the jury in the negative, and plaintiff appealed.
The complaint alleges that Jones and Ingham were copartners
Ingham advanced to Jones something over $8,000 by honoring checks and drafts drawn upon him. Jones made three shipments of horses to the Miles City market and these horses were sold pursuant to the agreement, and the net proceeds, after deducting shipping, yard, feed and commission charges, were, applied to the repayment of money advanced by Ingham. The transactions resulted in a substantial loss and Ingham refused to honor a draft intended to cover the overdraft in the Poison bank. Before the horses were shipped to market they wei’e branded with Ingham’s brand at his suggestion, and the last shipment was made in July upon Ingham’s instructions.
The trial court instructed the jury, without objection from the plaintiff, that “in this case no proof has been introduced and it is not contended that C. B. Ingham permitted himself to be represented as a partner with the said Harvey Jones, and therefore he was not liable as a partner unless he was such in fact.” This instruction is conclusive upon the parties in this court (see. 6746, Rev. Codes), and, with the admissions in the pleadings, narrows the issues to the single inquiry: Did the contract which provided: (a) Ingham should furnish Jones
The charge of the court in its entirety fully and fairly covered the case. "We have considered every assignment made by appellant, but fail to discover any substantial error in the trial court’s rulings.
The judgment and "order are affirmed.
Affirmed.