Fulton v. Cox
Before: Being, Bhodes, Crockett, Expressed, Wallace
Synopsis
Appeal from the District Court of tbe Fourth District, City and County of San Francisco,
Tbe complaint was for an accounting and dissolution of copartnership.
On December 28tb, 1859, tbe firm of Cox, Francis & Co. were doing business as commission merchants, and as dealers in miscellaneous trade in San Francisco. Fulton, tbe plaintiff, was carrying on a tannery and manufacturing leather belting and hose. Plaintiff alleges that Cox, Francis & Co. on that day entered into a verbal agreement with bim, to receive and sell bis leather belting and boss at retail, and make advances to bim to carry on bis business, for wbicb tbe firm of C. 3?. & Co. were to receive commissions to amount of twenty per cent, on all sales, and were to be allowed interest at tbe rate of two per cent, per month on advances; that tbe arrangement was one of copartnership with bim; and that tbe books and accounts were to be kept and made out in tbe name of Cox, Francis & Co. Tbe complaint then specially alleges tbe amount and character of tbe business transactions, and that about February 1 st, 1861, tbe firm of Cox, Francis & Co. was merged in a new firm, styled Cox, Willeutt & Co., wbicb latter received tbe stock unsold, and continued tbe business down to October 15th, 1861, and then refused to make further advances.
It is alleged in tbe complaint, that tbe firm of Cox, Francis & Co. was composed of J. W. Cox and J. W. Francis; and Cox, Willeutt & Co. of these two, together with Will-eutt.
Tbe defendant, J. W. Francis, answered separately and denied that be ever was, at any time, a member of either of tbe firms mentioned; and alleged that tbe firm of Cox, Francis & Co. was composed solely of Cox and D. B. Francis, and that of Cox, Willeutt & Co. was composed solely of defendants Cox and Willeutt.
Defendants Cox and Willeutt answered, and denied specifically each allegation of tbe complaint; and set up that Cox, Francis & Co. and Cox, Willeutt & Co., in all tbe dealings connected with tbe receipt and sale of tbe leather belting and hose, acted as commission merchants, for an agreed commission of twenty per cent, on all sales; and two per cent, per month interest payable monthly, on all advances made to Fulton to carry on bis business, and also set up tbe misjoinder of J. W. Francis, and nonjoinder of D. B. Francis, as defendant, and aver that tbe firm of Cox, Francis & Co. was composed solely of Cox and D. B. Francis; and that of Cox, Willeutt & Co. of Cox and Willeutt.
Tbe cause was referred to tbe Court Commissioner to take tbe proofs, *wbo stated tbe accounts, and made report, allowing to tbe plaintiff and defendant interest at tbe rate of ten per cent, per annum upon tbe monthly balances as tbey were found for or against them respectively, at tbe end of each month, and allowing no commissions to tbe defendants upon sales made by them or to them after tbe month of November, 1866; but upon all sales made prior to and inclusive of said month, allowing commissions at tbe rate of twenty per cent, of tbe gross amount of sales, with tbe exception of a few comparatively small items.
Bhodes, 0. J., delivered the opinion of the Court, Sprague, J., and Temple, J., concurring:
The dismissal of the appeal from the judgment, under Buie 3 of this Court, is not a bar to an appeal from an order, subsequently made, refusing the defendant’s motion for a new trial.
The answer tendered the issue of a misjoinder of J. W. Francis, as a defendant, and of the nonjoinder as a defendant of D. B. Francis. The Court found that J. W. Francis was not, and that I). B. Francis was, a member of the firm of Cox, Francis & Co. The plaintiff thereupon offered to amend the complaint by striking out the name of J. W. Francis and adding the name of D. B. Francis as a defendant, but the motion was opposed by the defendants and was denied by the Court. We are not apprised of the grounds of the objection, but whatever they may have been, it is clear that the defendants have no cause to complain of the misjoinder or the nonjoinder, for leave to amend the complaint was denied on their objection. The order will be regarded as having been made at their instance 'and with their consent.
The defendants insist that they should have been allowed interest on their advances, at the rate of two per cent, per month, and commissions on their sales at the rate of twenty per cent. The complaint states that the agreement to pay interest at two per cent, per month was verbal, and the answer does not allege that the agreement was in writing. The statute in force at that time, did not give effect to an [106]agreement for a greater rate than ten per cent, per annum, unless it was made in writing. "Whether interest on the advances was allowed at the rate of ten per cent, per annum, for that or some other reason, cannot be ascertained from the record in this Court. The principles upon which the account between the parties was to be stated, had been determined, before the Commissioner was ordered to state the account; but the evidence on which the Court acted is not presented in the record. As the alleged error occurred at that stage of the case, the action of the Court cannot be reviewed in the absence of the evidence upon which the principles were determined, upon which the account was required to be stated.
The question as to the commissions, occupies the same position as that in respect to the interest. The complaint avers that commissions at the rate of twenty per cent, were to be allowed on the sales at retail, while the answer claims such commissions on all sales; but, without having the evidence before us, we cannot ascertain what the agreement was, nor whether any sales were made at retail, after the time for which commissions were allowed to the defendants.
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