155 P. 451 | Utah | 1916
The plaintiff commenced this action to recover damages for an alleged breach of contract. The ease is here on second appeal. Morgan v. Child, Cole & Co., 41 Utah, 562, 128 Pac. 521. The pleadings on the second trial were those used on the first one. They are sufficiently set forth in the former opinion. We shall, however, refer to such parts as we may deem necessary in the course of the opinion. At the first trial the district court sustained defendant’s motion for a nonsuit. The motion, as appears from the former opinion, was sustained “on the ground that the contract and the evidence adduced by the plaintiff show that he and the defendant were co-partners in the transaction, and that an accounting between them was a prerequisite to the maintenance of the action, and that ‘the plaintiff had no right to sue the. defendant at law, ’ and had ‘mistaken his remedy, if any he has.’ ” A judgment of dismissal was accordingly entered. We reversed that judgment
“It is seen that the motion was granted and the action dismissed,, not on the gi’ound of insufficiency of evidence, hut on the ground of a mistaken remedy. We think the trial court erred. In this, as in many other states in which the formal distinctions between actions at law and suits in equity are abolished, the court may administer1 relief according to the nature of the cause set out, whether it is such as would be granted in equity or such as would be given at law. 3 Cyc. 736. Our Constitution (section 19, art. 8) expressly provides that ‘there shall be but one form of civil action, and law and equity may be administered in the same action.’ Volker-Scowcroft Lumber Co. v. Vance, 36 Utah 348; 103 Pac. 970; 24 L. R. A. (N. S.) 321, Ann. Cas. 1912A, 124.”
The defendant also set forth in its answer that the contract sued on was uncertain and unintelligible and was unenforceable for that reason; that it was against public policy and void; that it was conceived in, and procured by, fraud, and was entered into to defraud the public; that it was a gambling contract; that it was not authorized by the defendant ; that it was without consideration; and that the defendant had fully complied with the terms and conditions thereof. We ruled, however, that the contract was not ambiguous, and that it was not shown to be, nor was it upon its face, against public policy. Upon the other defenses, there was no evidence, except that the defendant had fully performed the terms of the contract; neither is there any evidence upon those issues now except the last one. None of the issues referred to were submitted to the jury at the last trial. The jury returned a verdict in favor of the defendant “no cause of action.” Judgment was entered accordingly, and the plaintiff again appeals.
In view that the court, in effect, charged the jury that the contract entered into between the parties and sued on here constituted them partners inter se, we shall set it forth in full. It reads:
‘ ‘ Eureka, Utah, June 3, 1908.
“This agreement made this day between James Morgan'of the first part, and Child, Cole & Co. of the second part. The party of the first part does agree to give to the party of the
“It is further agreed that the party of the first part shall be liable for his proportion of any losses the same as profits) and in case the information given by the party of the first part to the party of the second part is not correct or complete the party of the first part forfeits all his rights to and share of the profits, and this agreement becomes void except as to his liability in case of loss. This agreement is binding until all of the said stock has been bought and then sold.
“James Morgan, Party of the First-Part.
“Child, Cole, & Co., by Geo. A. Shepard,
“For the Party of the Second Part.”
The defendant is a corporation and is a member of the Salt Lake Stock & Mining Exchange, and, at the time in question, was engaged in the business of stockbroker, with its principal office at Salt Lake City, but was also conducting a branch office at Eureka, Utah, of which the George A. Shepard who signed the contract was the general manager. Said Shepard entered into and executed said contract on the day it is dated on behalf of the defendant, without the knowledge of the president. On the day following, Shepard telephoned the substance of the agreement to Mr. Child, the president of the defendant, but did not disclose that the agreement had been reduced to writing. Mr. Child declined to purchase the stock contemplated by the agreement, and so advised Mr. Shepard, unless the plaintiff would provide or “put up” security for his portion of any losses that might accrue; that is,.any losses that should arise by the decline of the price of the stock. Mr. Shepard informed plaintiff that Mr. Child had refused to purchase the stock as contemplated by the agreement, unless the plaintiff furnished security for his half of the losses in ease the
“I next saw Shepard the next morning, June 4th, at my livery stable, my place of business, between eight and nine o’clock. He came to my office and said that he had just got a phone from Child, Cole & Co., and that they were not satisfied with the contract, and if they were going to carry my share of the stock for $1.50 a share that they felt that I ought to put up security for it. I said: ‘All right. If that is the way you feel about it, you name the price. ’ So we talked the matter over and decided on $3,000. I was to give a note, a note signed by J. C. Sullivan, for that amount.”
Mr. Child also gave his version of the transaction as follows :
“On the morning of June 4, 1908, I had a long distance telephone talk from Salt Lake to Eureka, with George A. Shepard, and referred to the manner of procuring security, and this $3,000 note is the security that was given me in response to my telephone direction to protect us against any loss that might be incurred. I did not purchase the stock until after I heard from Mr. Shepard again that Mr. Morgan had agreed to give this note of $3,000. I then purchased the stock.”
The information contemplated by the original agreement and the security required by Mr. Child were furnished by the plaintiff.
The parties, with respect to the giving of security, seem to agree. The plaintiff, however, further contends that, when he was required to provide or- “put up” the $3,000 note as security for possible losses, it was agreed between him and Mr. Shepard, who represented the defendant, that the defendant should-hold plaintiff’s share of the stock, that is, one-half of the- stock purchased, until the stock should reach the price of $1.50 per share. Upon that point the plaintiff, upon cross-examination, further testified:
‘ ‘ The $3,000 note was to carry my share of the stock. They were to put up all the jnoney to buy the stock. I put up a note
Mr. Shepard denied that the agreement was to the effect that the defendant should hold or carry the stock until it had reached the price of $1.50, or any particular price. Mr. Child also testified that he had never heard of such an agreement until the action was commenced. It was also shown that there were 17,500 shares of stock purchased by the defendant under the contract; that the total cost of the.stock purchased, including interest, amounted to $16,222.15; that the defendant sold the same for $16,925.75, realizing a net profit thereon.of $703.60, one-half of which, it was shown, was tendered to the plaintiff as his share of the profits under the agreement, but which he refused to accept. The plaintiff also proved the fluctuations of the price of the stock after the agreement had been entered into, and proved that for a short time the stock sold on the stock exchange for $1.62; that he had requested the defendant to sell his portion of the stock when it had reached the price of $1.50 per share; that the defendant refused to do so, claiming that all of the stock had been theretofore sold for the amount before stated; and that plaintiff had been tendered his share of the profits as aforesaid.
Upon the evidence the plaintiff asked that he be given judgment for the difference between what the stock cost, to wit, $16,222.15, and what said stock could have been sold for had the defendant kept and sold it at the highest price obtainable, to wit, $1.62 per share. If the defendant had sold said 17,500 shares at $1.62 per share, it would have realized $28,340 therefor, or $12,117.85 in excess .of what, it did in fact obtain from the sales at the time they were made. The plaintiff contends, therefore, that under the terms of the contract entered into between him and the defendant he is entiled to recover one-
The court, among other things, instructed the jury:
“The court instructs you that the agreement of June 3, 1908, set forth in the amended complaint, constituted the plaintiff and defendant partners in the stock to be purchased thereunder, and, if the note signed by J. C. Sullivan and the plaintiff was given to defendant merely for the purpose of protecting defendant against loss on the plaintiff’s share or interest in the stock to be purchased pursuant to said agreement, then your verdict must be for the defendant.
“If you believe from the evidence that on the 4th day of June, 1908, G-. A. Shepard reported to the plaintiff that the defendant would not purchase any stock under the written agreement of June 3d, referred to in the evidence, and in the amended complaint, until the plaintiff had arranged security to protect the defendant against loss, from decline in the price of the stock, on plaintiff’s interest therein, being then the stock contemplated to be purchased under the agreement of June 3d, and plaintiff agreeing to furnish said security and thereafter gave to said Shepard the note signed by himself and J. C. Sullivan, then the court charges you that the plaintiff and defendant were partners, and your verdict in that event must be for the defendant.
1 ‘ The court charges you that, if the plaintiff and defendant were partners, then the defendant had a right to sell the partnership -stock at any time it might desire; and even if you should believe that the plaintiff objected to the sale of any of the same or any part thereof, until it reached $1.50 per share,
The plaintiff excepted to the foregoing instructions and has; assigned the giving of them as error prejudicial to his rights’. Defendant’s counsel contend that the foregoing instructions merely reflect defendant’s theory; that the court has also charged the jury in accordance with plaintiff’s theory; that all of the instructions must be read and considered as a whole; and that, when so considered, the plaintiff has no cause for complaint.
“Our law has always treated the partnership relation as founded, in voluntary contract. It does not surprise parties into a partnership against their will, although it does not require an express agreement between them, nor is it bound by their statements of intention in associating themselves together for business transactions. It will regard their conduct rather than their language in determining whether their voluntary association in a business enterprise amounts to a partnership or not.”
Parties may become partners for a single or for a series of transactions. Same volume, 254. . At. page 360, same volume, .. it is said:
“When a court is called upon to determine whether a particular contract constitutes a partnership between the parties thereto, its controlling purpose is to ascertain their intention as it is disclosed by the entire transaction.” (Italics ours.)
“Oftentimes the partnership contract contains peculiar provisions, imposing upon one or more of the partners obligations differing from those which the law ordinarily infers from the partnership relation, or conferring unusual rights and powers. In all such cases the courts will strive to construe these provisions so as to effectuate the honest intentions of the parties, as shown by the language of the contract and their conduct under it.”
To the same effect, see same volume, 439.
Partners may “enter into any agreement between themselves for the management of their joint affairs that they may ■deem proper, ’ ’ and, so far as the partners are eoncern’ed, any reasonable agreement will be enforced by the courts. Hall v. Sannoner, 44 Ark. 34.
“It is the duty of the trial court in instructing the jury, at the request of either party, to state correctly the legal principles governing the right or liability of partners in the particular case, * * * to inform them of the questions they are to decide and those which the court determines, and to refuse improper requests for instructions. Questions of law, whether presented by the pleadings or by undisputed evidence that warrants but one legal inference, are to be determined by the court. Questions of fact, especially those raised by conflicting evidence, are to be determined by the .jury. What constitutes a partnership is a question of law; but*427 whether a partnership exists in a particular case is for the jury, under proper instructions from the court, if the evidence is conflicting or if it is open to more than one inference. Whether the intention of parties in a particular case was to become partners may he a question for the jury. It may also be a question for the jury whether persons who are admitted to be partners intended to contract or to hold property as a firm or as individuals.”
Plaintiff has also assigned errors upon the admission and exclusion of evidence. Even though it were conceded that a few errors crept into the record in that regard, yet those errors were harmless. True it is that the court allowed defendant’s counsel a little more latitude in cross-examining the
For the reasons stated, the judgment is reversed, and the eause is remanded to the district court of Juab County, with directions to grant a new trial. Appellant to recover costs.