Freeman v. Sullivan

PLUMMER, J.

Action by the plaintiff for an accounting and to charge defendant with one-half of .losses incurred. The defendant had judgment, and the plaintiff appeals.

The complaint filed herein sets forth two alleged causes of action, one based upon an allegation that the plaintiff and defendant formed a partnership and conducted a partnership for the purpose of buying and selling beans. The second cause of action sets forth that the plaintiff and defendant engaged in a joint adventure, the purpose of which was to buy and sell beans. The second cause of action set forth in the complaint was dismissed upon the trial. The answer of the defendant denies the partnership.

The transcript shows that the plaintiff and defendant, in the year 1917, entered into an oral agreement for the purpose of buying and selling beans. The plaintiff was to furnish the money; the defendant was to buy and sell the beans. The profits, if any, were to be divided. The testimony of the plaintiff was to the effect that the losses and gains were to be shared equally. The testimony of the defendant was to the effect that the plaintiff advanced all money; he, the defendant, was to do the buying and sell

[202]

ing; that the plaintiff was to bear the losses, if any, and the profits, if any, were to be shared equally.

The court found that the relation of partnership was never created between the parties; that under the terms of the agreement entered into between the parties the plaintiff was to bear all the losses. The business carried on did result in a loss of several thousand dollars. The transcript further shows that the plaintiff was a man possessed of considerable means, having at his command a considerable sum of ready cash; that the defendant was a young man, twenty-four years of age, engaged as the driver of a creamery wagon, and had had some slight experience in buying and selling beans.

Upon this appeal the appellant sets forth five reasons why the judgment of the trial court should be reversed. First, that the court erred in failing to rule upon and grant plaintiff’s motion to strike out a portion of defendant’s answer. Second, that the court erred in granting defendant permission to file an amended answer. Third, that the court erred in overruling the plaintiff’s objection to the introduction in evidence of defendant’s exhibit number one, being copy of a complaint. Fourth, that the court erred in denying plaintiff’s motion for a new trial. And, fifth, insufficiency of evidence to justify the findings of fact. While the foregoing alleged errors have been assigned, only one, that is the fifth, has been seriously argued, and the only one to be considered in this opinion for the simple reason that it is the only one that touches the matter of substance affecting the merits of this action.