Smith v. Dubost

THE COURT.

This appeal was transferred from the district court of appeals for the second appellate district to. this court for disposition, because the justices of the district court were unable to concur in a judgment. The several opinions—majority and minority—of the justices of the district court accompanied the transfer, as the law requires they should. An examination of these opinions under the record presented satisfies us that the views expressed on the merits of the appeal as set forth in the majority opinion are correct. That opinion is as follows:—

“This action was brought to compel an accounting of the affairs of a mining partnership alleged to exist between plaintiff and defendant, and to recover damages for false and fraudulent representations and concealment touching a certain quicksilver mine situated in San Luis Obispo County. The defendant had judgment, and plaintiff appeals therefrom and from an order denying a new trial. The findings are to the effect—1. That there was no partnership between plaintiff and defendant; and 2. That defendant bought the mining property in question from plaintiff for a good consideration without fraud, received a deed from plaintiff for the entire property, and was the sole owner thereof. These findings fully disposed of the ease as made by the pleadings. If there was no partnership, there was

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no partnership accounting to he had. If there was no fraud or concealment and the consideration for the transfer was good, then the defendant had been the owner of the entire property for more than three years before the commencement of the action; and hence the plaintiff could recover nothing on the score of damages, or on any theory that the defendant held the property in trust for him. The further finding that plaintiff’s cause of action was barred by the statute of limitations seems to have been sustained by the evidence, but as it was entirely unnecessary to the support of. the judgment, in view of the other findings already referred to, we need give it no further notice. The evidence also supported all the findings. As to the partnership agreement, plaintiff testified to it and defendant denied it. The deed of the entire interest in the property to defendant was a strong circumstance corroborating the theory of no partnership. The evidence was also conflicting as to the fraudulent representations and concealment. The trial judge had the witnesses before him, and we will not disturb a decision of fact based upon conflicting evidence. It is the province of the trial court ‘to determine between conflicting inferences and deductions which may reasonably be drawn from the testimony. ’