Vail v. Pacific Fish Products Co.

STURTEVANT, J.

The plaintiffs commenced an action against the defendants and alleged their claims in three common counts, each being for moneys laid out and expended for the defendants. The defendants answered, and in their answer first they denied each of the allegations contained in each count in the plaintiffs’ complaint; second, to each count they interposed a separate defense to the effect that the subject matter of that particular count in plaintiffs’ complaint was a part of a larger transaction, to wit, a copartnership enterprise between the plaintiffs and the defendants as copartners; third, the defendants pleaded a defense to the effect that the subject matter of all the counts contained in the plaintiffs’ complaint was a part of the subject matter of a larger transaction, to wit, said copartnership, and pleaded the facts constituting the copartnership and the business transactions had thereunder down to the twenty-fourth day of December, 1918, at which time the copartnership was dissolved ; that during the existence of said copartnership the plaintiffs received large sums of money for the account of the defendants and have refused to apply them as provided in the partnership agreement; and that an accounting should be had; fourth, defendants then pleaded seven counts against the plaintiffs, each being for a different claim for moneys alleged.to be due and owing to the defendants by reason of transactions had between the parties under the alleged co-partnership agreement. The defendants closed their answer with a prayer that an accounting be had, etc. The plaintiffs, answered the cross-complaint and thereafter the cause came on for trial before the court sitting with a jury. The jury returned a general verdict and many special verdicts. The verdicts were incorporated in a judgment in favor of the plaintiffs and against the defendants in the sum of $16,086.30, from that judgment the defendants have appealed and have brought up a bill of exceptions.

From the same judgment the plaintiffs have appealed and have joined in bringing up the same record to support their appeal.

[61]

When the cause was called for trial it was stipulated between counsel that the special defense, to the effect that the plaintiffs and the defendants were copartners and that no accounting had ever been had, and that, therefore, no action could be maintained by one copartner against the other until such an accounting had first been had, should be tried by the trial court sitting without a jury and before calling a jury to try the other issues. Thereupon, the following documents, parts of which we have italicized, were offered and received in evidence: