Fulton v. Cox

40 Cal. 101 | Cal. | 1870

Bhodes, 0. J.,

delivered the opinion of the Court, Sprague, J., and Temple, J., concurring:

The dismissal of the appeal from the judgment, under Buie 3 of this Court, is not a bar to an appeal from an order, subsequently made, refusing the defendant’s motion for a new trial.

The answer tendered the issue of a misjoinder of J. W. Francis, as a defendant, and of the nonjoinder as a defendant of D. B. Francis. The Court found that J. W. Francis was not, and that I). B. Francis was, a member of the firm of Cox, Francis & Co. The plaintiff thereupon offered to amend the complaint by striking out the name of J. W. Francis and adding the name of D. B. Francis as a defendant, but the motion was opposed by the defendants and was denied by the Court. We are not apprised of the grounds of the objection, but whatever they may have been, it is clear that the defendants have no cause to complain of the misjoinder or the nonjoinder, for leave to amend the complaint was denied on their objection. The order will be regarded as having been made at their instance 'and with their consent.

The defendants insist that they should have been allowed interest on their advances, at the rate of two per cent, per month, and commissions on their sales at the rate of twenty per cent. The complaint states that the agreement to pay interest at two per cent, per month was verbal, and the answer does not allege that the agreement was in writing. The statute in force at that time, did not give effect to an agreement for a greater rate than ten per cent, per annum, unless it was made in writing. "Whether interest on the advances was allowed at the rate of ten per cent, per annum, for that or some other reason, cannot be ascertained from the record in this Court. The principles upon which the account between the parties was to be stated, had been determined, before the Commissioner was ordered to state the account; but the evidence on which the Court acted is not presented in the record. As the alleged error occurred at that stage of the case, the action of the Court cannot be reviewed in the absence of the evidence upon which the principles were determined, upon which the account was required to be stated.

The question as to the commissions, occupies the same position as that in respect to the interest. The complaint avers that commissions at the rate of twenty per cent, were to be allowed on the sales at retail, while the answer claims such commissions on all sales; but, without having the evidence before us, we cannot ascertain what the agreement was, nor whether any sales were made at retail, after the time for which commissions were allowed to the defendants.

Judgment affirmed.

Wallace, J., being disqualified, did not sit in the case. Crockett, J., expressed no opinion.