Harris & Jacoby v. Hillegass
Before: Department, McKinstry
Synopsis
Partnership.—Hillegass, (defendant’s intestate) at Philadelphia, in 1849 —being about to start for California—entered into a written contract with the plaintiffs, then his partners, under which they were to have a certain proportion of the proceeds of his mining and other business, af ter first deducting $1,500 advanced by the firm; Held, that the contract created a partnership; there being both a community of interest in the original capital and in the profit and loss.
Id.—Stale Demands—Pleading—Demurrer.—H. came to California, and died here in 1876, leaving property of large value. In an action for an accounting brought against his administrator—the complaint alleging that the partnership was never dissolved until the deatii of H., but also alleging, and attempting to excuse the fací., that no demand had ever been made for an accounting in tile life-time of H: Held, upon demurrer to the complaint— without deciding whether in any case an objection that the demand is stale can he taken hy general demurrer—that in this case, in view of the allegation that the partnership was never dissolved, the objection did not lie ; although the other facts stated might tend strongly to show, or prima facie might even show, that in point of fact the partnership had been dissolved long before the date alleged.
Pleading—Probative and Ultimate Facts.—Even where a statement of evidentiary facts, if admitted to be true, would establish prima facie an ultimate or pleadable fact, they cannot be substituted in a pleading for an allegation of the fact to be put in issue.
Department No. 1, McKinstry, J.: The complaint alleges that on the 26th of June, 1849, the plaintiffs and one William Hillegass, now deceased, (the administratrix of whose estate and whose heirs are the parties defendant) were copartners, with equal interests, doing business in Philadelphia, Pennsylvania; that on that day the firm sent Hillegass to California and furnished him with the sum of $1,500 to defray his traveling expenses, “ and to enable him to engage in digging gold, and trading generally in said State on behalf of said firm ”; that in connection therewith Hillegass made and executed the agreement following :
“Know all men by these presents : That I, Wm. Hillegass, of the city of Philadelphia, State of Pennsylvania, about starting to California to dig gold, do firmly, truly, and sincerely promise with Wm. C. Harris, of the city of Philadelphia, State of Pennsylvania, and Geo. L. Jacoby, of Sunnytown, Montgomery County, Pennsylvania, jointly, half the proceeds of my diggings and trading, or in whatever manner I obtain gold metal, etc.; that is, after $1,500 are'deducted, the amount loaned from the firm of Jacoby, Harris & Hillegass: should my diggings, tradings, etc., not amount to $10,000, then the aforesaid Wm. C. Harris and G. L. Jacoby, jointly, get one-third of the proceeds only; but should he gvt more than $10,000, then, as above stated, Wm. C. Harris and Geo. L. Jacoby are to receive, jointly, one-lialf of the proceeds.
“ Witness my hand and seal the 26th day of June, 1849.
“ Wm. Hillegass. [Seal.]
“Witness present, J. E. Siitjltz”; that thereupon the firm settled its business in Philadelphia and discontinued the same therein ; that in 1849 deceased came to California, and by and with the money aforesaid engaged in different kinds of labor, trade, and business in California, under and in pursuance of said contract on behalf of said firm, and continued so to engage until his death; that after the said 26tli of June, 1849, .and under and in pursuance of said contract, Wm. Hillegass aforesaid acquired, by and with the money aforesaid, large sums of gold, greatly exceeding $10,000, and pur[466]chased therewith and acquired by and with the aid of the said $1,500, and by his trading on behalf of said firm, the following real and personal property. (Descriptions of the property follow, being descriptions by metes and bounds of a large number of separate lots or parcels of land, and descriptions of stocks in certain mining corporations, and of other personalty.
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