Parke v. Hinds

Baldwin, J. delivered the opinion of the Court—Cope, J. and Field, C. J. concurring.

Suit brought against several persons, composing the partnership known as the Cosumnes Valley Quartz Mill Co. The issue was tried as between the Respondents, who were plaintiffs below, and the Appellant, upon the plea of Appellant, that he was not a member of the company, or.a partner with his co-defendants during the time when the work was performed, and the money advanced by the plaintiff. The case was tried by the Court, which found that the allegations of the complaint were true, and that the defendant, Hinds, was a member of the company mentioned in the complaint as to the plaintiff, Parke, during the whole time the indebtedness alleged in the complaint accrued. Then followed the conclusion of law, that the plaintiff should have judgment, etc.

A motion for new trial was made and overruled. Two points are insisted upon by Appellant.

1. That the finding is insufficient to sustain the judgment. The point is not well taken under the particular facts. The only issue submitted was the fact fully set out in the complaint, and as fully denied in the answer, that the defendant, Hinds, was a partner in this company at the time given. When the Court passes directly upon the very facts set out in the issue, its finding under our system, is sufficient. It is not a mere conclusion of facts, as the Appellant’s counsel insists, but it is the substantial fact piit in issue—the whole matter necessary either to be stated or proved. It is argued, however, that this finding [418]might be sufficient under the rule as held in McEwen v. Johnson, (7 Cal. 260,) but for the circumstance, that the Court does not simply find that the facts of the plaintiff’s complaint are true, but qualifies the finding by the addition of the words, that the defendant, Hinds, was a partner as to the plaintiff, Parke; and this fact of particular relation to Parke was evidently dependent upon facts extraneous to those in the pleadings, which facts, the counsel insists, should have been expressly found. Certainly, the finding is not very explicit in this respect, and it would have been better.if more exactness had been used. But, we think, that the defendant should have objected below to the finding on this ground, when the defect could, and probably would, have been remedied. We decided a principle analogous to this in the case of Algier v. Steamer Maria, at this term. We there held, that when a jury returns a general finding, and also makes response to particular directions or issues of facts submitted to them by the Court, if the losing party objects to the generality or the indefiniteness of the finding upon one of the issues, he must make the objection on the return of the verdict, and that it is too late to wait until the jury are discharged, and then claim to set aside the verdict on this ground. The same principle applies here. The defendant could' object below to the finding for this cause. He failed to do so. He moved for a new trial on other grounds. Mo exception to the judgment or finding on this ground was made below, and we think it too late to raise it in this Court on appeal.