Hammond v. Borgwardt

THE COURT.

—This action was brought to recover possession of two hundred pairs of shoes seized by the defendants as sheriff and deputy sheriff as the property of Edmund Hammond, Jr. The court below granted judgment for defendants, and the plaintiffs appeal from the judgment and from an order denying a new trial.

The shoes in question were part of a stock oí goods in a store in which a mercantile business was carried on under the name of Hammond & Co., and the attachment was levied on the twenty-first day of June, 1897; and the court found that from the tenth day of December, 1896, until the said twenty-first day of June, the said Hr.mmond, Jr., was the owner of and in possession of the store and the stock of goods, including those described in the complaint. It is contended by appellants that this finding was not warranted by the evidence, but the contention cannot be maintained.

[612]

As to the plaintiff Winnie Hatóínond, who is the wife of Edmund Hammond, Jr., the court found that on the twenty-eighth day of January, 1887, Hammond, Jr, executed to the plaintiff Winnie an instrument, by which he purported to sell and convey to her an undivided two-thirds of certain land upon which the store stood, together with an undivided two-thirds of the stock of goods therein; and that on the fifteenth day of June, 1887, he executed to her another deed by which he conveyed the interest above stated, and also the same interest in a wagon and" certain horses and in certain book accounts owing to the firm of Hammond & Co.; but .that there was no change of possession "of any of said property or any change in the management thereof; and this finding is amply sustained by the evidence.

As to the plaintiff Edmund Hammond, Sr., it is contended by appellants that the court should have found that he was at least a partner in the firm, and that, therefore, no particular part of the goods belonging to the firm could be taken on attachment as the property of Hammond, Jr., and that all that could have been attached as the property of Hammond, Jr., was his interest in all the property of the partnership. But the court was not called upon by the evidence to find that Hammond, Sr., was a partner, and it did not'err in not so finding. The only evidence of any facts tending to show the - partnership is to be found in the following testimony of Hammond, Jr., who is-the son of Hammond, Sr., while on the witness stand: “I was in possession of a stock of goods, wares, and merchandise in Bandsburg from some time in December, 1896, to January, 1897. I located a mining claim, known as the ‘Winnie/ which location was made in the name of myself, my father, and a gentleman named Prosser; we traded the mine for the store, and in making the trade for the store we were all equal partners in the same, each owning one-third. I bought Mr. Prosser out in December, 1896.”