Pico v. Cuyas
Before: Niles
Synopsis
Finding of Facts.—The Court should find only the ultimate facts, and not the evidence upon which the ultimate facts are based.
What Facts wild be Consideeed on Appeal.—The Court, on an appeal upon ■ the judgment, can consider only the ultimate facts found. If the findings contain probative facts, or the evidence upon which the ultimate facts are based, they will not be considered.
Pebfoehance of Conteact within the Statute of Fbaud.—When-a verbal contract of partnership is made for the term of more than one year, and the parties act upon it, and conduct the partnership business upon the terms agreed upon, and in the firm name, neither party can afterwards avoid the obligations of the contract, as to past transactions under it, on the ground that it was a contract not to be performed within one year from its date, and therefore within the prohibition, of the Statute of Frauds.
Contbact of Pabtneeship between Lessob and Lessee.—The lessor, after he has leased a hotel to the lessee, may enter into a contract of partnership in keeping the hotel with the lessee, with an agreement that the rent reserved shall be a charge upon the firm, and if the latter contract is separate from the first, it does not work a surrender of the lease, and in an action by the lessor to recover the rent, the lessee may prove the partnership as a defense, if pleaded.
Idem.—Under such contract of partnership, the lessor remains the lessor, and his claim for rent under the lease continues, but the rent must be paid out of the net profits of the partnership, and he cannot bring an action at law to recover the rent.
Pabtneb cannot sue Co-pabtnbb at Law.—If the lessor of a hotel, after the lease is made, enters into a contract of partnership with the lessee in keeping the same, the lessor cannot sue at law for the rent reserved in the lease, but must sue in equity for a partnership accounting.
Depositions taken befoee filing Amended Answee.—If, after depositions in a cause have been taken, an amended answer is filed, the depositions will not be rejected as evidence on the trial, on account of the filing of the amended answer, if the material issues made by both answers as to the subject matter on which the depositions were taken, are substantially the same.
By the Court, Niles, J.: Several of the original findings of the Court, and most of the additional findings made at the request of plaintiff’s [178]counsel, and to which much of their argument is addressed, are obnoxious to the objection that they are merely statements of the evidence upon which the findings of fact were , based. It has been repeatedly held that a finding of the Court cannot be impeached upon the ground that it is contrary to the evidence, otherwise than by a motion for a new . trial, and statement of evidence upon the motion. We can consider, upon appeal from the judgment, only the ultimate facts found by the Court, and not the probative facts, which have no proper place in the findings.
The execution and delivery of the lease by the plaintiff to the defendant are admitted by the pleadings. By its provisions the term was to commence on the fifteenth day after the delivery 'of the keys of the house by the plaintiff to the defendant, and was to continue for ten years. It appears from the findings, that subsequent to the execution and delivery of the lease, and prior to any delivery of the keys to the defendant,’ the plaintiff and defendant entered into negotiations for the formation of a partnership in the business of hotel-keeping, which, by the proposed terms, was to commence on the opening of the hotel to the public, and was to continue for .the term of five years thereafter, under the firm name of Cuyas & Co.; the rent of the property to be paid by the partnership, and the profits and losses to be divided in certain proportions. Subsequently, but before any contract of partnership had been concluded, the defendant received ’ the keys of the house from the building contractor, and three days thereafter opened the hotel to the public under the firm name of Cuyas & Co.. Still later, but at what precise time does not appear, the plaintiff “ ac-' cepted, assented to, and entered into the partnership with the defendant, as the result of their negotiations, * * * and acted on the same as commencing from the day the hotel was opened to the public.” No written contract of partnership was made, but the partnership business was conducted upon the terms agreed upon, during the period for which rent is demanded.
At the trial plaintiff moved to strike out all evidence of the partnership agreement, upon the ground that the con[179]
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