Arnheim v. Gordon

KERRIGAN, J

This is an appeal from an order denying defendant’s motion for a new trial and to vacate the judgment in an action to recover money alleged to have been loaned by the plaintiff to the defendant.

The complaint is in two counts, but the trial court having granted defendant’s motion for a nonsuit as to the second count—covering an alleged indebtedness in the sum of one

[755]

hundred dollars—and no appeal having been taken therefrom, we are confined to a consideration of the court’s action upon the first count, resulting in the entry of judgment in favor of plaintiff for the sum of five hundred dollars.

It appears'that on the third day of June, 1907, the plaintiff, desiring some money, executed to the defendant his promissory note for the sum of one thousand dollars, which the defendant, pursuant to a previous understanding with the plaintiff, negotiated or discounted for plaintiff’s account. This note was subsequently paid in full by plaintiff. Of the sum thus raised defendant paid over to the plaintiff five hundred dollars. This amount plaintiff, it is not questioned, contributed to a business in which both parties to this action with another were interested as partners. As to the remaining five hundred dollars plaintiff claims that at defendant’s request he allowed him to retain it as a loan. The defendant on the other hand asserts that this second five hundred dollars was kept by him to be used for the payment of rent for the place where the business of the partnership was conducted, and that it was in fact so employed, by agreement with the plaintiff.

There was a sharp conflict in the testimony as to whether or not this was true. The check covering this amount was not made payable to the partnership, but to the plaintiff personally, and there are other circumstances in the case tending to support the finding of the court that the transaction as to the second five hundred dollars was a personal loan by the plaintiff to the defendant. Hence, under the familiar rule we cannot, even if we were so disposed, interfere with the conclusion of the trial court.

It is true that if the subject matter of this case grew out of a partnership relation between the parties, this action would riot lie; but the court, on sufficient evidence, found that the transaction was not connected with the partnership, in which case the rule contended for by. defendant has no application.