Olmstead v. Dauphiny
Before: Belcher, Fitzgerald, Haven, McFarland, Searls, Vancliee
Synopsis
Appeal from a judgment of the Superior Court of Humboldt County and from an order denying a new trial.
The facts are stated in the opinion.
There was a misjoinder of causes of action. The first count is a cause of action founded on negligence, error, or mistake of the defendants’ vendors, and is united in the same complaint with a cause of action in the second count founded upon an express contract for money due plaintiff from defendants. (Benton v. Winner, 23 N. Y. Supp. 413; Code Civ. Proc., sec. 427; CheroJcee Nation v. Southern Kan. Ry. Co., 135 U. S. 641; Smith v. State, 66 Md. 215; Thelin v. Stewart, 100 Cal. 372; Reynolds v. Lincoln, 71 Cal. 188; Stark v. Wellman, 96 Cal. 400; Cosgrove v. Fisk, 90 Cal. 75; Wiles v. Suy-dam, 64 N. Y. 178; Henderson v. Boyd, 85 Tenn. 21; Hodges v. Wilmington etc. Ry. Co., 105 N. C. 170; Keep v. Kaufman, 56 N. Y. 332; Stewart v. Gordon, 65 Tex. 344; Anderson v. Case, 28 Wis. 505; Wirth v. Bartell, 84 Wis. 209; Hart v. Metropolitan El. R. Co., 7 N. Y. Supp. 753; Stewart v. Huntington, 2 N. Y. Supp. 205; Me Crummen v. Campbell, 82 Ala. 566.) The account set forth in the complaint is not an account stated, as the plaintiff never agreed to the balance. (Auzerais v. Naglee, 74 Cal. 63; White v. Campbell, 25 Mich. 469; Volkening v. De Graaf, 81 N. Y. 268; Abbott’s Law Dictionary, 12; Bussey v.-Gant, 10 Humph. 238; Spangler v. Spangler, 22 Pa. St. 454.) An incoming partner is not liable for the debts, errors, or mistakes of the old firm existing previous to the transaction by which he came into ■ partnership. (Bates on Partnership, sec. 482; Twyford v. Trail, 7 Sim. 92; Scott v. Kent, 54 N. Y. Snpp. Ot. 257; 1Vewhall v. Wyatt, 22 N. Y. Supp. 828; Wheat v. Rice, 97 N. Y. 296; Smith y. Millard, 77 Cal. 440; First Nat. Ranh v. Simmons, 98 Cal. 287; Gauss v. Hobbs, 18 Kan. 500; Shafer’s Appeal, 99 Pa. St. 246; Kountz y. Holthouse, 85 Pa. St. 236; Adhins v. Arthv/r, 33 Tex. 431; Sternburg v. Gal-lanan, 14 Iowa, 251; Parmaleev. Wiggenhorn, 6 Neb. 322; Wright y. Brosseau, 73 Ill. 381; Sloan v. Van Wych, 47 Barb. 634; Parsons on Partnership, 151; Story on Partnership, secs. 146, 153; Lindley on Partnership, 390; Serviss y. McDonnell, 107 N. Y. 260; Morss v. Gleason, 64 N. Y. 206; Butler v. Henry, 48 Ark. 551; Englar y. Offutt, 70 Md. 78; 14 Am. St. Rep. 332.)
The two causes of action united in the complaint arose out of a contract and therefore were properly united. (Code Cíy. Proc., 'sec. 427; More y. Massini, 32 Cal. 590; Cowan v. Abbott, 92 Cal. 100; Hendy y. March, 75 Cal. 566; Auzerais y. Naglee, 74 Cal. 63.) The account between the parties was an Recount stated, as no objection was made to it except as to one of the items, which was finally adjusted. (Green y. Thornton, 96 Cal. 71; Terry y. Sichles, 13 Cal. 430; Auzerais y. Naglee, 74 Cal. 63; Hendy y. March, 75 Cal. 566; Tuggle v. Minor, 76 Cal. 100.) The mere fact that the account included debts due to or from former firms cannot in the least affect the account. (Carey y. Philadelphia etc. Petroleum Co., 33 Cal. 697; Hendy v. March, 75 Cal. 568.)
Searls, C. This action is brought to recover the sum of $1,362.46, as follows: $140 for rent upon certain premises leased, concerning which there is practically no controversy, and the further sum of $1,222.46, for money averred to have been paid by plaintiff .to defendants under a mistake upon an account stated.
Plaintiff had a verdict for $720, upon which judgment [638]was entered. The appeal is from the judgment and from an order denying defendant’s motion for a new trial.
It appears from the pleadings and evidence that on or about January 1, 1892, the defendants rendered to plaintiff an account in writing, showing a balance due from the latter to the former, which account and bal-ánce was acquiesced in by the plaintiff, except as to some items due him on account of the rent of a building leased by bim to defendants. These items were adjusted, and a balance of $528.81 appearing due from plaintiff was by him paid to defendants.
Plaintiff subsequently discovered that defendants had failed to credit him with certain checks paid by him to them, and brought this action to recover therefor.
The evidence showed beyond reasonable doubt that a draft dated January 22, 1890, on, etc., for $40, and one of June 15, 1890, for $540, were received from plaintiff and no credit given therefor.
These amounts, with $140 due on account of rent, make up the amount of the verdict. The only question of any importance in the case relates to the liability of the firm of A. C. Dauphiny &.Co., composed of defendants, for the amount of these checks.
In 1890, when such checks were paid in by plaintiff, the firm was that of Dauphiny Brothers. On January 1,1891, G. A. Dauphiny, one of the members of the firm of Dauphiny Brothers, sold his interest in said firm to the defendant P. McAleenan, who thereupon formed a copartnership with the other defendant herein, under the firm name of A. 0. Dauphiny & Co., and said firm have since said date carried on the business of merchandising at Eureka, Humboldt county, theretofore conducted by their predecessors.
The vital question at the trial was, Did the new firm assume the debts and liabilities of the old firm of Dau-phiny Brothers? In addition to finding a general verdict certain special issues were submitted to the jury, upon which they were instructed to find, and upon the
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