128 P. 521 | Utah | 1912
In the complaint it is -alleged that the plaintiff and the defendant on the 3d day of June, 1908, entered into a written agreement, by the terms of which it was agreed that the plaintiff should furnish the defendant information “concerning the property known as the Sioux Consolidated Mining Company,” and that the defendant should purchase “about forty thousand shares of the capital stock of said company, or an investment of not to exceed $15,000,” and to equally divide the profits and share the loss. It is further alleged that the information referred to in the agreement consisted
Tbe defendant filed an answer denying tbe material allegations of tbe complaint, and alleged that tbe contract sued on was ambiguous, uncertain, and without consideration; that its name was subscribed thereto without authority, and that tbe agreement was entered into by tbe plaintiff for tbe purpose of gambling in stocks and to defraud tbe public; that tbe plaintiff was not tbe real party in interest, and that there was a misjoinder of parties plaintiff and a non-joinder of parties defendant; and that tbe defendant, on its part, performed all tbe obligations of tbe agreement, and fully accounted to tbe plaintiff and paid him all that was due him.
Upon these issues tbe case was partially tried to tbe court and a jury. At tbe conclusion of plaintiff’s evidence, tbe court, on tbe defendant’s motion, granted a nonsuit on tbe ground that tbe contract, and the evidence adduced by the' plaintiff, show that be and tbe defendant were copartners in tbe transaction, and that an accounting between them was a prerequisite to the maintenance of an action, and “that the plaintiff bad no right to sue tbe defendant at law,” and bad “mistaken bis remedy if any be has.” A judgment of dismissal was thereupon entered, from which tbe plaintiff has prosecuted this appeal.
We do not think the contract bad on the alleged ground of an incurable ambiguity, or that it, on its face, is, or was by the evidence conclusively shown to be, void as against public policy on the grounds urged. We. do not find any evidence to support the allegation that the defendant received any pon tion of the alleged dividends. But as to all other material allegations of the complaint we find some evidence tending to support them.
The judgment of the court below is therefore reversed, and the case remanded for a new trial. Costs to appellant.