114 Minn. 38 | Minn. | 1911
Defendant Chandler, owning oil leases, sold an undivided three-fourths interest to defendants Ryan, Fletcher, and MacMillan. The leases were operated for the benefit of the four persons, but without any formal partnership agreement. There was no partnership, unless implied by law from the facts proven; but we find evidence from which the trial court was justified in finding the existence of that relation between the parties. Chandler manáged the property, sold the oil, and applied the proceeds to expenses. The leased property was talien over by the “Guaranteed Petroleum & Gas Company.” At this time Chandler’s management ceased. Plaintiff claimed a balance on account of supplies furnished for operation prior to the time the corporation took over the property. On the evidence introduced the trial court found, among other things, that defendants were partners; that there was a balance due the plaintiff of $2,737.-09. This appeal was taken from an order of the court denying a motion for a new trial.
The principal assignment of error ivas addressed, not to the question whether the defendants were mere co-owners, and not partners, but to an alleged error in allowing certain witnesses to testify
The witness testified in great detail as to the items and value of the items. Defendant insists that by this means the witness merely read in the record books of account which were not competent for admission in evidence. This testimony was taken by deposition. Objection was not made to the competency until the time of the trial. That was time enough, and there is no doubt that, if this were all thére was to the testimony, defendant’s assignment should be sustained. The matter of competency is primarily addressed to the discretion of the trial court. This court will not disturb its conclusion, unless a great abuse of discretion appears.
The plaintiff insists that the witness was not introducing tlie books in evidence, but was giving the testimony of his own personal knowledge. He was the manager of the plaintiff. We are not prepared to hold that under these circumstances reversible error on the part of the trial court appears. This conclusion is the more reasonable, in view of the absence of clear controversy as to the fact of sale and delivery. The defendant’s answer alleges “that, if plaintiff sold and delivered the goods, wares, and merchandise * * * the plaintiff was long since paid in full therefor.” Talcing the record as a whole, we find in it no reversible error.
Pee Curiam.
For the reasons stated in the foregoing opinion, prepared by the late Justice Jaggard, the order appealed from is affirmed.
On April 21, 1911, the following opinion was filed:
Per Curiam.
Upon the reargument granted in this case, attention is 'Called to three questions involved in the appeal, not discussed in the opinion filed.
1. Did the taking of the note of two of the partners as an extension of the time for payment, but not in payment, leave the plaintiff free to sue the other partners on the debt in advance of the maturity of the note ?
There was evidence from which the trial court might determine
2. Was it prejudicial error to allow a witness for the plaintiff to testify to the absence in the account books of plaintiff of an entry showing settlement or payment of the account sued on?
One of the defendants, upon the trial of the case, testified that the plaintiff’s manager, after looking at the books, told defendant the account was paid. A witness, presumably the person referred to as plaintiff’s manager, testified in behalf of the pláintiff that he made no statement to the defendant that this account was paid, and in that connection testified that the books did not show payment. Without the books being in evidence such testimony as to their contents was incompetent, and should not have been received. But, while this testimony was in form testimony as to the contents of the books, it was in effect — the trial being before the court without a jury — a reiteration of the denial on the part of the witness that he had made the statement attributed to him. The error was not prejudicial.
3. Does the excess of amount found by the trial court to be owing entitle defendants to any relief on this appeal ?
It is claimed on behalf of the appellant that it clearly appears that the amount of the account in issue, as found by the trial court, was $119.22 in excess of the amount shown by the evidence. Certain statements contained in the record support this claim; but an
The former decision is adhered to.
See per curiam order on page 40.