Haskell v. Moore

By the Court, Currey, C. J. This, case has once been passed upon and the judgment affirmed by this Court, but upon a petition for a rehearing the judgment of affirmance was set aside. Since then the case has been elaborately reargued by counsel on behalf of the plaintiff. All the questions involved in the case have, we believe, received that careful attention and consideration by the Court which a case of its merits justly demands. We say this, because counsel have more than intimated that in this respect we were derelict of duty in our former examination and disposition of the case. Regarding the first count in the complaint as stating a cause of action against the defendants— Moore & Folger—we examined and passed upon the case as we supposed upon its merits, and are satisfied that we came to the only conclusion, so far as the plaintiff’s right to recover is in question, that could be arrived at in conformity to the law and evidence.

Answer when complaint contains no cause of action.

The plaintiff claims that he is entitled to a reversal of the judgment of the District Court, and a final judgment in his favor in this Court on the ground that the answer does not deny the allegations of the first count of the complaint— “ always provided,” say his counsel, “ that we have set out a good cause of action in the complaint.” It is not insisted that the answer does not traverse the allegations of the second count of the complaint, which is in the form of a common count for money by the plaintiff paid, laid out and expended to and for the use of the defendants, and at their instance and request. We are of opinion that every allegation of the complaint intended to be controverted is sufficiently denied. But whether the first count of the complaint is well controverted or not is immaterial, for we are of the opinion it does not set forth any cause of action against the defendants. It seems to have been objected to on this ground in the Court below, by demurrer, which was overruled. This we infer from what the [439]plaintiff’s counsel say in argument, but whether it was or not the objection is made in this Court on the part of the defendant, and we are not at liberty to disregard its consideration.

Construction of covenant to indemnify.

This action was brought against Moore & Folger, partners in business, after which Folger died, and the action since then has proceeded against Moore as the sole defendant. By the complaint it appears that from some time in the year 1855, up to the 3d of November, 1857, the plaintiff and defendants were engaged in business in San Francisco, in purchasing in California and elsewhere on the Pacific coast, merchandise, principally hides and wool, and exporting the same from the Port of San Francisco to other ports for sale. That they carried on said business for their joint account and profit, and at their joint risk, until the 3d of November, 1857, at which time the defendants were compelled, by pecuniary embarrassments, to suspend their business, and the said joint business was discontinued, and from that day until the 28th of October, 1858, the plaintiff “ continued the said business and carried it on on his own account and in his own name, and in the same manner it had before been carried on on the joint account of plaintiff and defendants, in the name of defendants, and with the same implements, agents and machinery.” The plaintiff then alleges that at the last mentioned date he had shipped to New York and elsewhere, principally by vessels put up by the defendants as general freighters, a large amount of merchandise, principally hides and wool, on consignments for sale, from which he had not received any return, or only partial returns or accounts of sale; some of which merchandise was then upon the defendants’ ships on the high seas, and some on the defendants’ ship Peruvian, lying in the Port of San Francisco, destined for the Port of New York; and the plaintiff then alleges that on that day he “was bound and liable for liabilities connected with and growing out of said exporting and importing business up to the sailing of the said ship Peruvian, in the sum of seventy-three thousand nine hundred and