Freeman v. Campbell

55 Cal. 197 | Cal. | 1880

McKinstry, J., for the Court, (from the bench) :

We believe that there is no sufficient averment in this complaint that the promissory note was executed by the makers as partners, or for a consideration which passed to the partnership. Nor do we think that the findings determine that fact in terms. There is a finding that they are partners, and there is a finding also that they executed this promissory note, but no distinct finding that it was a partnership note, or that those persons executed it as partners.

We find also in respect to the matter of insolvency, which is alleged in the answer, and upon which there is no finding in the record, that (inasmuch as the appeal was taken from the District Court prior to the date when the Court went out of existence) it would be impracticable to return the case to the Superior Court, with directions to find upon the issue in respect to insolvency alone; and the case can only be disposed of by ordering that the judgment be reversed, and cause remanded to the Court below, where the parties can make such application for amendment of the proceedings as they may be advised is for their interest.

Judgment reversed, and cause remanded for further proceedings.