5 Nev. 219 | Nev. | 1869
At a former term of this Court, tbe two cases now before us were considered — tbe defendant then tbe appealing party — in tbe reported case of Roney v. Buckland, (4 Nev. 45). In pursuance of tbe judgment of reversal and tbe opinion then pronounced, new trials were bad by tbe Court below — jury trial being waived — in wbicb the findings of fact and judgments were for defendant. Plaintiff moved for new trials, on several grounds, which were refused; and thereupon be appealed from both the orders and judgments. As the’ second trials were conducted in accordance with the law laid down in tbe opinion reversing said causes, the present appeals must be considered upon tbe several matters contained in the record now before us, irrespective of tbe cases made at tbe former hearing. It is stipulated that the two causes shall be beard together.
The complaint in the one action alleges a loan of five thousand dollars, in United States currency; and in the other, fifteen hundred dollars, Government bonds or securities, by the plaintiff, to one Henry Bethel, on or about the tenth of October, 1865, for account and use of the firm of Buckland (defendant) & Bethel, then partners in a mercantile business, being carried on near Port Churchill, in this State; furthermore, alleging the subsequent death of said Bethel, demand, and non-payment.
The defendant is sued as surviving partner, to recover the amount of such loans, and value of the securities.
The partnership, demand, and refusal to pay, as alleged in the complaint, are not denied; but in other respects the answers fully traverse all of the material allegations. So, it rested with the plaintiff to make proof of the several averments denied by the answers. To this end it is shown, that on the evening of October 10th, 1865, the plaintiff brought to the Quartermaster’s office, at Fort Churchill, where Bethel then was, (purposing to leave the following morning to buy a stock of goods) a package of greenbacks and Government bonds, corresponding to the amount and description stated in the complaints, and delivered them to said Bethel. Bethel, after the count had been made, inquired of Roney “ if he wanted a receipt or note for them ? ” and Roney made answer,
There is no evidence in the present record that the package was taken by Bethel from its place of deposit, the Quartermaster’s safe. It was admitted on the trial that Bethel was killed by the explosion of the steamer “Yosemite,” on the twelfth of the same month, whilst en route to San Francisco.
It is further in proof that the defendant, apart from the firm business of Buekland & Bethel, was engaged in ranching, stock-raising, and hotel-keeping; and that Bethel was also engaged in a separate business — that of transporting goods for the Government, from Fort Churchill to other military'posts to the eastward. It was also shown upon the trials, that plaintiff — after fully stating his' case to counsel, subsequent to the death of Bethel and his knowledge thereof — applied to the proper Court for letters of administration on the estate of deceased, by petition, duly verified, in which he stated that he was a creditor of such estate, on account of the loan sought to be recovered in these actions; and at a later time, when letters of administration had been granted to another person, he brought suit against the administrator of such estate, on a verified complaint, to establish his claim as a creditor of the individual estate of the deceased, by reason of the same transaction. The latter suit, however, 'was dismissed before the commencement of these actions.
The appellant seems to have waived the other'grounds of motion for new trials, in the lower Court, and here urges a reversal of the judgments on the one issue — that the findings of fact are contrary to the evidence. We have stated the evidence very fully on all material points, as we find it in the transcript. The proof is undoubted, that plaintiff delivered to Bethel the moneys and securities set forth in the complaint; but whether as a loan does not appear, and there is too meager a showing to justify the conclusion that Buekland is chargeable as copartner of Bethel. The authorities cited on behalf of appellant fully support" this view.
Judgments affirmed.