35 Cal. 365 | Cal. | 1868
We think the evidence insufficient to justify the third finding, to the effect that the defendants executed the note upon which the action is brought, by their agent, Denver, and that said Denver had full power and authority to make and execute said note, by virtue of his being a partner in and agent for the company.
There is no conflict in the evidence as to the material facts in the case, and it shows, that the defendants constituted one of the ordinary unincorporated ditch companies so common in the mining regions, owning a ditch which conveyed water from a certain stream to a distant mine, for sale to the miners for mining purposes'. The interests were held by the owners in different proportions, in shares, represented by certificates of stock, which were bought and sold at the pleasure of the owners, without consulting their có-owners. The ordinary relations of the stockholders in these associations, like those in the usual mining companies, organized and conducted upon similar principles, and sometimes called mining partnerships, are not those of strict commercial partnerships, but are more in the nature of tenancies in common. (Bradley v. Harkness, 26 Cal. 77; Skillman v. Lachman, 23 Cal. 201; Duryea v. Burt, 28 Cal. 587; Abel v. Love, 17 Cal. 237; Set
So, in the present case, there was not only no evidence to show that Denver had express authority to execute the note, but, it was affirmatively shown that he had not, and it was
Hpon the findings, the judgment should have been against Latham, as well as the other defendants. The note purports to be the note of the company, and the third finding is, that Denver had authority to make and execute the note. The sixth finding is entirely consistent with the third, and finds that Latham was a member of this company at the time of the execution of the note sued on. If he was a member when the contract sued on was made, and the contract was. executed by a party duly authorized, he must, of course, be bound by it, as well as the other members.
The judgment and order denying a new trial must be reversed and a new trial had, and it is so ordered.
Mr. Justice Sanderson, being disqualified, did not participate in the decision.