114 Cal. 396 | Cal. | 1896
Defendant and one John Herd, Jr., formed a copartnership for the purpose of farmming a large tract of land; a memorandum of their contract was in writing, dated August 20, 1891, and one of its provisions was that Herd, as his
In his answer defendant first denied the allegations of the complaint, and then in a separate paragraph— numbered IV—alleged matters which, if true, showed that plaintiff sold the feed and paid the money in question to and for Herd only. He • also pleaded as counterclaims, on information and belief, that in February, 1892, plaintiff succeeded to the interest of Herd in said partnership, and is indebted to defendant on account of certain described transactions of the partnership, and separately, that plaintiff owes him the sum of fifty-two dollars for boarding one Harry Lane at plaintiff’s request. Plaintiff demurred to the answer and to the counterclaims. The court ordered that
At the trial, judgment went for plaintiff, and included two hundred and thirty-four dollars for interest on his demands from the time of the commencement of the action to date of judgment—October 8,1892, to September 5, 1894.
The principal question before the trial court was one of fact. Herd directed Lane to supply Turner with the seed and feed he required “ as per agreement and with this direction as part of his arrangement with plaintiff Turner received the goods. The court, upon conflicting evidence, determined that the agreement thus referred to and incorporated into the contract with plaintiff was the stipulation of the original partnership contract, unchanged as claimed by defendant. Consequently, defendant was chargeable with notice that Herd’s credit for the feed procured from plaintiff was limited to the sum of fifteen hundred dollars, and he was himself liable for what he ordered in excess of that amount. (Civ. Code, secs. 2318, -2443.) The fact in proof that all the goods were originally charged against Herd on the books of plaintiff was pertinent, but not conclusive evidence, in ascertaining who was the real purchaser, and was open to explanation. (Rice v. Heath, 39 Cal. 609.)
As to the averments of indebtedness of plaintiff to defendant, arising out of alleged partnership transactions between them—mere unadjusted claims which might be the subject of an accounting—it is not, and hardly could be, seriously contended that they constitute proper counterclaims in this action. (Case v. Maxey, 6 Cal. 276; Haskell v. Moore, 29 Cal. 437.) But the counterclaim of fifty-two dollars for boarding Harry Lane was valid, and the demurrer thereto should have been overruled; plaintiff concedes this, and consents that the judgment be reduced accordingly.
The court property allowed interest on the plaintiffs demands from the filing of the complaint. (Civ. Code,
The superior court is directed to modify its judgment by deducting therefrom the sum of fifty-two dollars as of its date of entry, and, as so modified, the judgment •and order denying a new trial are affirmed.