29 Cal. 437 | Cal. | 1866
This, case has once been passed upon and the judgment affirmed by this Court, but upon a petition for a rehearing the judgment of affirmance was set aside. Since then the case has been elaborately reargued by counsel on behalf of the plaintiff. All the questions involved in the case have, we believe, received that careful attention and consideration by the Court which a case of its merits justly demands. We say this, because counsel have more than intimated that in this respect we were derelict of duty in our former examination and disposition of the case. Regarding the first count in the complaint as stating a cause of action against the defendants— Moore & Folger—we examined and passed upon the case as we supposed upon its merits, and are satisfied that we came to the only conclusion, so far as the plaintiff’s right to recover is in question, that could be arrived at in conformity to the law and evidence.
Answer when complaint contains no cause of action.
The plaintiff claims that he is entitled to a reversal of the judgment of the District Court, and a final judgment in his favor in this Court on the ground that the answer does not deny the allegations of the first count of the complaint— “ always provided,” say his counsel, “ that we have set out a good cause of action in the complaint.” It is not insisted that the answer does not traverse the allegations of the second count of the complaint, which is in the form of a common count for money by the plaintiff paid, laid out and expended to and for the use of the defendants, and at their instance and request. We are of opinion that every allegation of the complaint intended to be controverted is sufficiently denied. But whether the first count of the complaint is well controverted or not is immaterial, for we are of the opinion it does not set forth any cause of action against the defendants. It seems to have been objected to on this ground in the Court below, by demurrer, which was overruled. This we infer from what the
Construction of covenant to indemnify.
This action was brought against Moore & Folger, partners in business, after which Folger died, and the action since then has proceeded against Moore as the sole defendant. By the complaint it appears that from some time in the year 1855, up to the 3d of November, 1857, the plaintiff and defendants were engaged in business in San Francisco, in purchasing in California and elsewhere on the Pacific coast, merchandise, principally hides and wool, and exporting the same from the Port of San Francisco to other ports for sale. That they carried on said business for their joint account and profit, and at their joint risk, until the 3d of November, 1857, at which time the defendants were compelled, by pecuniary embarrassments, to suspend their business, and the said joint business was discontinued, and from that day until the 28th of October, 1858, the plaintiff “ continued the said business and carried it on on his own account and in his own name, and in the same manner it had before been carried on on the joint account of plaintiff and defendants, in the name of defendants, and with the same implements, agents and machinery.” The plaintiff then alleges that at the last mentioned date he had shipped to New York and elsewhere, principally by vessels put up by the defendants as general freighters, a large amount of merchandise, principally hides and wool, on consignments for sale, from which he had not received any return, or only partial returns or accounts of sale; some of which merchandise was then upon the defendants’ ships on the high seas, and some on the defendants’ ship Peruvian, lying in the Port of San Francisco, destined for the Port of New York; and the plaintiff then alleges that on that day he “was bound and liable for liabilities connected with and growing out of said exporting and importing business up to the sailing of the said ship Peruvian, in the sum of seventy-three thousand nine hundred and
The liabilities mentioned in the complaint as connected with
We shall consider these questions together. The plaintiff alleges in his complaint that the business in which the parties were jointly engaged prior to the 8d of November, 1857, was discontinued on that day, and that from that time until the 28th of October, 1858, the date of the contract, the plaintiff continued the business, and carried it on on his own account and in his own name; and he also alleges that the liabilities mentioned and on which he founds the breach of the contract on the part of defendants, had accrued, not against the plaintiff and defendants jointly, but against the plaintiff in said business. We have here the plaintiff’s construction as to the kind of liabilities to which the defendants’ covenant applied. He, in effect, claims that the covenant was to indemnify him against liabilities connected with the exporting and importing business, which had accrued against him individually while he was carrying on the business on his own account in his own name. By reference to the covenant, the liabilities therein mentioned are limited to those connected with the exporting and importing business in which the parties—the plaintiff and Moore & Folger—had been engaged. After having considered and weighed all that has been said on the subject on behalf of.' plaintiff, our judgment is that the defendants’ covenant had. reference only to the joint liabilities of the parties, or, in other
The second count of the complaint is for money by the plaintiff paid, laid out and expended to and for the use of the defendants at their special instance and request. The defendants on their part interposed a counter claim in a large sum for money, freight, etc., advanced and supplied by the defendants to the plaintiff at his request, to pay which, they allege, he has neglected and refused, and therefore they pray judgment against him for such sum, etc. The cause was tried before a referee. There is no evidence in the case in support of the second count of the complaint. The referee found that in the months of November, 1858, and January, 1859, Moore & Folger advanced to the plaintiff divers sums of money amounting in the aggregate to nineteen thousand five hundred and sixty-seven dollars and thirty-eight cents, which sums were independent of the written contracts, one of which is set forth in the complaint, and the other referred to therein. He also found that the business, which the parties by the contract of the 28th of October, 1858, contemplated carrying on, was never commenced, and that no part of the consideration moving Moore & Folger to enter into that contract ever passed to them. The referee also found that between the 28th of October, 1858, and the 9th of February, 1860, Moore & Folger received on vessels put up by them as general freighters, and not under the agreements mentioned in the complaint or either of them, and transported on said vessels from San Francisco to New York, for said Haskell, hides and wool for which they were entitled, at the time the action was commenced, to seventeen thousand five hundred and fifty-five dollars and ninety-
Partnership accounts.
The plaintiff objects to the judgment for the sum so rendered and made final against him, on the ground that it is not supported by the evidence, and on the ground that the matters thereof are proper matters of partnership under the contract set forth in the complaint. If the matters which the defendant gave in evidence as constituting his counter claim, and on which this money judgment was founded, were matters of partnership, then the defendant was not entitled to judgment for the same in this action. The-referee found in effect that the demand for which the judgment stands was not involved in the partnership which the parties undertook to
Judgment affirmed.
Mr. Justice Sawyer and Mr. Justice Shafter, being disqualified, did not participate in the decision.