55 P.2d 739 | N.M. | 1936
G.T. McCulloh sued J.H. Doyle, Jr., for $1,265.85 which he alleged was one-half the loss suffered on 1,318 bags of beans bought by the parties as a joint venture. A jury was waived and the cause tried to the court. *127 Judgment for $793.35 was rendered for the plaintiff, and this appeal followed.
The two points relied upon for reversal are that the complaint fails to state facts sufficient to constitute a cause of action and that the judgment is unsupported by substantial evidence.
No finding of fact was requested by appellant and no objection made to the findings of the court except the general objection and exception inserted in the judgment entry. On this record the appellant is not entitled to invoke a review of the evidence by this court. It was the duty of the court, after the waiver of a jury, to ascertain the intention of the parties as disclosed by their acts in connection with the entire transaction. Hannett v. Keir,
Appellant overlooks the line of demarcation between partnership and joint adventure recognized in this state [Tharp v. Massengill,
"A member of a joint adventure who has been injured by a breach of contract by his associate, * * * or of a loss suffered in the business which the associate has expressly or impliedly agreed to pay, may, in a case where the amount of plaintiff's claim is capable of ascertainment and computation by a jury, bring an action at law to redress his grievance, and may in such action recover the damages which he has suffered from the injury alleged." 33 C.J. 866.
Finding no error in the record, the judgment will be affirmed. It is so ordered.
SADLER, C.J., and BICKLEY, BRICE, and ZINN, JJ., concur. *128