Newbrau v. Snider

1 W. Va. 153 | W. Va. | 1865

Thomas "W. Harrison, J.,

delivered tbe opinion of tbe court.

Tbe plaintiff in tbe court below instituted bis action of assumpsit to recover of tbe defendant 300 dollars, which be claimed be bad loaned him, and 100 dollars, one half of tbe profits made with the 300 dollars by trading in sheep. Defendant pleaded non-assumpsit. Tbe plaintiff submitted bis evidence to sustain the issue,on bis part. Tbe defendant demurred to it, and tbe plaintiff joined in tbe demurrer. Upon tbe demurrer tbe county court gave judgment for the defendant. Tbe circuit court reversed the judgment of tbe county court, and tbe plaintiff in error alleges here, that tbe circuit court erred in so doing.

Tbe demurrent admits tbe truth of the evidence of bis adversary, and all fair inferences to be drawn from it; but in tbis case insists that tbe evidence shows there was a partnership existing between the parties in reference to tbe matter in controversy, and therefore tbe defendant in error could maintain no action at law against him.

That there was a partnership in regard to tbe matter in controversy, is admitted and asserted by both parties. Snider gave Newbrau 300 dollars to buy sheep with, and told tbe witness Neely that be and Newbrau were partners; that be was to have half tbe profits; and witness beard him at different times talking- about being in partnership in driving sheep. He also told Fox, another witness, that he was to have half tbe profits. Newbrau told Fox they were partners ; that be was to have tbe money to trade in sheep, and Snider was to have half the profits, if any.

-There is no proof of any loan. If any, it can only be inferred from what Snider said about interest on bis money. That was not sufficient to support tbe issue on bis part.

Tbe defendant in error has not shown, to tbe satisfaction of tbe court, that tbis partnership was limited to any portion of the adventure. He lias not shown that it was limited to any particular time. He has not shown that it was dissolved, nor has he shown anything giving him the right to sue his partner at law. The presumption thqn, is, that the partnership was existing when he commenced his action, and that it related to the whole subject in controversy. Under such a state of facts it is well settled, that this action cannot be maintained. 1 Chitty on Pleading, 26-7.

The remedy is by bill in equity for an account dissolution, and decree for any balance found due him. The law applicable to this case may be found in Colyer on Partnerships, §§ 3, 16, 55,107, 289, 774; and in 5 Leigh, Brown v. Higginbotham.

This being the condition of the parties, it is immaterial to notiee the other objections to the judgment of the court below, for whatever be the opinions or rulings of this court as to them, would be wholly useless to either of the parties.

The judgment of this court therefore is, that the judgment of the circuit court be reversed and annulled; that the judgment of the county court be affirmed, and that the plaintiff in error recover his costs in the circuit court and in this court expended.

Judgment reversed.