55 Minn. 353 | Minn. | 1893
The firm of Chesley & Lovejoy, in May, 1886, and for a long time previous thereto, were engaged in the lumber business at Fargo, Dak., and were then largely indebted, chiefly to Farnham & Lovejoy and J. J. Howe & Co., and at the date mentioned their assets were about equal to the amount of their debts, and they were then contemplating a dissolution of the partnership and a division of the assets, and the assumption by each membei of the firm of his proper portion of the indebtedness, which included the note sued on in this action; and thereafter, on the 26th day ol May, 1886, upon consultation with defendant J. J. Howe, one of the firm of J. J. Howe & Co., Chesley & Lovejoy entered into an agreement under which they agreed to dissolve their partnership, and Lovejoy, whose Christian name was Frank, was to receive the real
One of the alleged errors, and that chiefly complained of, isi that the evidence does not sustain the finding in plaintiff’s favor that Howe agreed to pay the indebtedness in question. The evidence is conflicting, but we think there is sufficient in the record to support the finding. The deeds of the real property executed by Lovejoy ran to J. J. Howe, and bore the same date as the contract of dissolution between the parties, and were delivered to him. When the transaction was closed, he was not present, but was represented by an agent, who took charge of the book accounts, which were left by him with Chesley for J. J. Howe & Co.; and some of them, it appeal's were collected for that firm by Chesley, and the proceeds
The evidence seems to have left it uncertain whether the assignment of the book accounts was in writing; and at the trial, in response to the notice to produce the same, which notice- the defendant tacitly admitted had been previously given, they denied that they had any such instrument in their possession, and hence failed' to produce the same. The witness Chesley had already stated that it was his recollection that there was an assignment of the accounts-by Frank L. Lovejoy in connection with the deeds of the lands, and thereafter he was permitted to testify over defendant’s objection, though he could not state absolutely, that they were assigned to Howe.' This is in corroboration of what other witnesses testified, to. But it is objected here that it was incompetent, because the-writing should have been produced. We think that upon the evidence it should be presumed under the circumstances that when the settlement was made and the agreement completed and executed, the assignment, if in writing, was delivered to J. J. Howe- & Co. through their agent who represented them at the time, and, as-Chesley did not receive the assignment after that time, and it was-not delivered to him with the accounts, it must be presumed that the-agent retained it for his principals, and that it passed into their custody, and it was for them to account for it; hence the ruling of the-court complained of was not error.
Upon the cross-examination the witness Chesley had stated that he thought he “had an impression in respect to the nature of the-transfer made to J. J. Howe, an impression that arose from what he heard at that time.” The question was then asked by the defendant’s counsel, “ Will you state what your impression was 2” whichi
The court does not find specifically that the note was indorsed to the plaintiff, and owned by him, but simply finds generally that the defendant is indebted to the plaintiff in the amount thereof.
This was clearly an oversight by the court. The note, duly indorsed, was produced on the trial, and plaintiff’s ownership was not questioned, nor the fact litigated at the trial, so that it may be ¡assumed for the purposes of this appeal. Menzel v. Tubbs, 51 Minn. 364, (53 N. W. Rep. 656.)
The findings of fact are otherwise sufficient under the issues, and the court did not err in refusing in its discretion to find more specifically upon certain questions, as asked by defendants.
Judgment affirmed.
