Colquhoun v. Fursman

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants in an action brought by the plaintiff as assignee of a certain firm, to recover the sum of $750 as the reasonable value of certain goods, wares, and merchandise alleged to have been sold and delivered by said firm to said •defendants as a copartnership and individually, and for which they had refused to pay.

The four defendants who were served with process and appeared herein denied that they were copartners, or that as .such or individually they or either of them had purchased any wares or merchandise from plaintiff’s assignor; and they also averred affirmatively that plaintiff had already recovered judgment against certain other persons on account •of the sale to them of such goods. Upon the issues thus framed the cause went to trial, at the conclusion of which the trial court gave judgment in favor of the defendants. The court also denied the plaintiff’s motion for a new trial •on the ground of newly discovered evidence, and from such judgment and order the plaintiff appeals.

We find no merit in the first contention of the appellant that the evidence was insufficient to support the findings and .judgment in defendants’ favor. The evidence educed at the trial showed the following state of facts: In the month of October, 1910, one Henry E. Lee caused to be located 175 placer mining claims at Searles Lake, in San Bernardino County. In so doing he used the names of the defendants in .this action without their knowledge or authority. Sub

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sequently, according to the testimony of said Lee, he procured from these defendants a ratification of his acts in using their names in making said locations, but upon the condition and understanding that none of said defendants should assume or be charged with any personal liability because of such locations, but that said Lee should care for the property, perfect the title, sell or work the said locations, and provide all funds necessary for such purposes without any personal liability on the part of the defendants. Subsequently, when certain assessment work was required to be done upon these locations, said Lee, in co-operation with Thomas W. Pack and T. 0. Toland, proceeded to employ men and incur expense in doing such work, and in so doing purchased the goods, wares, and merchandise from the assignor of the plaintiff for the value of which this suit was brought.