1 Idaho 673 | Idaho | 1877
delivered the opinion,
The complaint in this action alleges, in substance, that the defendant and one James Thompson were partners, doing business as saloonkeepers, at Placerville, in Boise county, under the firm name of James Thompson; and, for a first cause of action, that said firm became and were indebted to plaintiffs, at a date and in a sum mentioned, for goods, wares, merchandise, liquors, etc., sold and delivered by plaintiffs to said firm. For a second cause of action: That said firm became and were indebted to F. Miller & Co., upon account, etc., and that said account and the balance due thereon had been assigned to plaintiffs. It further alleges, that since said indebtedness was created, Thompson died, leaving the defendant the sole surviving partner.
To this complaint the defendant answered, denying that he ever was a copartner of James Thompson; and to the first cause of action, “he denies that this defendant ever became indebted” for goods, wares, merchandise, etc., sold and delivered by plaintiffs to J ames Thompson and defendant, or to defendant individually. The answer as to the second cause of action denies that he, defendant, ever became indebted for goods, etc., sold by Miller & Co. to Thompson and defendant, or to defendant individually, or that there ever was any balance of account due to Miller & Co. from him, the defendant.
The term of court at which the cause was tried, com
The fifth and sixth instructions given at the request of the defendant, which are the only ones necessary to be noticed
The first point we shall consider is, whether the court abused its discretion in refusing a continuance, and whether, in case it did, the plaintiffs have kept themselves in d position to take advantage of the error. The granting or refusing a continuance rests in tlie sound discretion of the court by which it is made, and it is only in cases where an unreasonable discretion is exercised that this court will interfere. It is by this rule’that we must be governed in deciding whether the court erred or not in refusing a continuance. We have examined the affidavits for a continuance critically, and have failed to find any defect in them. They show that, in accordance with the settled practice of the court, which is its law, until changed upon due notice, the plaintiffs caused subpoenas to issue for witnesses as soon as the cause was set for trial, and that in all respects due diligence was used to procure the attendance of the witness Williams. The jury law of this territory provides that no
Neither can we grant a new trial on the alleged ground of surprise, because the rule just stated is equally applicable to motions made on this ground. The surprise should have been shown by the best and most satisfactory evidence rvith-in the reach of plaintiffs, which was the affidavits of persons in whose hearing the witness stated that he could testify to the truth of matters which he failed to state when questioned on the witness stand.
In giving the instructions numbered five and six, at defendant’s request, to the effect that it was incumbent upon the plaintiff's to prove a sale and delivery, the court unquestionably committed an error, there being no denial in the answer of those facts alleged in the complaint. It is true that the defendant pretends to make answer to the two several causes of action set forth in the complaint, denying that he ever became indebted for the goods alleged to have been sold; but this is not the allegation of the .complaint. The plaintiffs charge that the goods were sold and delivered to an association of persons, a partnership; and this, not being denied, except in so far as it is controverted by the denial of filie existence of the partnership, is, when the
It would seem to be almost superfluous to quote authorities upon a proposition so well established and so perfectly understood; and yet we refer to a few. In the case of Burke v. Table Mountain Water Co. et al., 12 Cal. 407, Baldwin, J., delivering the opinion of the court, says: The complaint charges that the defendant, the Table Mountain Water Co., was in possession. The answer of the company does not deny this averment in any such manner as to put it in issue. What the complaint called the defendant to answer was, not only the character, but the fact of possession by it, and a failure to deny this averment is an admission of it. This admission is conclusive evidence of the fact admitted. It is therefore immaterial, so far as the company are concerned, whether the court erred or not in its admission or rejection of eviddnee, in respect to an admitted fact. In Mulford v. Estrudillo, 32 Id. 131, Rhodes, J., in delivering the decision, says: Where the ultimate fact is admitted on the record, probative facts tending to establish, modify, or overcome it, are not the proper subjects for judicial action. In the case of Green v. Covilland, 10 Id. 317, it is said: We have not overlooked the fact that in this case the decree was rendered upon proofs which, seek, in important respects, to vary the case made by the pleadings; but this is immaterial. A plaintiffs case can not be better as proved than it is as stated. It is a cardinal rule in equity, as in all other pleadings, that the allegata and probata must agree, and that averments material to the case, omitted from the pleading, can not be supplied by the evidence.
If the ease was to be finally disposed of by the judgment of this court on this appeal, it would not be necessary to consider the remaining question of error in law in rejecting testimony offered, but as a new trial is to be awarded, it is better to decide upon that assignment of error now, for the direction of the district court upon the new trial.
The allegation of partnership being denied, the burden of proving it by such competent evidence as is accessible to them devolves upon the plaintiffs, but the fact being peculiarly within the knowledge of the defendant, it being less known to the plaintiff than to the defendant, slight proof on the part of the plaintiff is sufficient. It is sufficient for them to show that the deceased, Thompson, and defendant acted as partners, that they participated in the profits of the saloon business; that they had a community of interest in the property and profits. It is not necessary that the evidence should bear directly upon the issue. It is admis
Tbe judgment and order refusing a new trial are reversed and a new trial ordered.