Trauer v. Meyers, 19 N.M. 490

Trauer v. Meyers

19 N.M. 490 | N.M. | 1914

OPINION.

ROBERTS, C. J.

1 The first alleged error discussed is the-refusal of the court to hold in abeyance the present action until the termination of the equity suit. As to this it is sufficient to say that the allegations of defendant’s answer in this regard were denied in the reply, and no evidence was offered by defendant to support his contention.

On the trial appellee testified as a witness, and on direct examination went fully into the transactions between himself and appellant, relative to the real estate in question. On cross examination appellant’s counsel, after asking certain questions relative to- what was said between the parties at the time the original agreement was entered into, propounded the following question: “And you entered into a partnership agreement with him did you not ?” Appellee’s counsel objected to this question on the following ground: “I object to that as not proper cross examination. They set that up as a defense and we did not ask anything about a partnership.” This objection was sustained by the court. This ruling is assigned as error.

2 While the objection, on the ground stated, was not tenable, because appellee had gone fully into the whole transaction leading up to the acquirement by him of an interest in the real estate, and the relation of the parties, in his-direct examination, still we think the error was harmless. The rule is, that “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 that is disclosed by the entire-transaction. But the intention which controls in determining the existence of a partnership is the legal intention deducible from the acts of the parties, and, if they intend to do a thing which in law constitutes a partnership, they are-partners, although their purpose was to avoid the creation of such relation. Particular clauses in the contract, or even express statements that it does or does not constitute a partnership, are not conclusive on the subject.” 30 Cyc. 360. The court permitted appellant to fully cross examine appellee as to all that was said and done at the time the contract for the acquisition of an interest in the real estate by appellee was entered into, and their subsequent conversations and acts likewise, and we can not well see how appellant was injured by the erroneous ruling in excluding this particular qirestion. .When all that was said and done by the parties was brought out, it was for the court to determine whether such acts and agreements created a partnership relation. It is a familiar and well established rule, that an appellate court will not reverse a judgment for error which resulted in no prejudice to the party seeking to take advantage of it. 3 Cyc. 383.

3 The remaining assignments of error all question the sufficiency of the evidence to sustain the findings of the trial court. We have examined the record and find that there is evidence to sustain the findings of the trial court. Appellee testified that appellant agreed to give him a warranty deed for the real estate. This appellant denied, but the trial court had the parties before it and was better able to determine the truth than is this court. In the case of James vs. Hood, 19 N. M. 234, we said, “However, under the well established rule, neither the verdict of the jury nor the findings of a trial court will be disturbed in the appellate court, when they are supported by any substantial evidence.” Goldenberg vs. Law, 17 N. M. 546, 131 Pac. 499. This case comes within the rule.

Finding no available error in the record, the judgment of the trial court will be affirmed, and, IT IS SO ORDERED.