Harper v. Anderson

HAYNES, C. Plaintiff and defendant Anderson were co-partners in the nursery business from May, 1888, to May, 1889; when defendant Anderson sold out to defendant Wheeler. The complaint charges that each of the defendants has collected and received moneys belonging to the firm of Harper & Anderson, of which one-half belongs to plaintiff, and prays for an accounting. Among other allegations, it is charged that defendant Wheeler has taken possession of the books, and for that reason plaintiff is unable to ascertain the amount collected or the amount due. The cause was tried by the court without a jury. At the close of plaintiff’s evidence in chief a nonsuit was granted as to defendant Wheeler, and, upon the final submission of the case, findings were filed in favor of defendant Anderson, upon which judgment was entered. Plaintiff moved for a new trial on a statement and now appeals from the judgment and an order denying a new trial.

The appeal from the judgment cannot be considered, because not taken in time.

The answer admitted the partnership between the plaintiff and Anderson, and its dissolution, but denied that the defendants had the books of the firm, or that any collections had been made of moneys belonging to the firm. There was no allegation that the business of the firm had been settled or adjusted, nor that there were no outstanding accounts at the time of the dissolution. The court, however, found that after the dissolution there was a settlement, and that Anderson paid plaintiff a certain sum of money, but that at the time of said settlement it was agreed that any sums of money which might thereafter be collected should belong to the plaintiff and Anderson, one-half to each. The evidence amply sustains the finding of these facts.

Certain books were produced upon the trial, but by whom does not appear. The plaintiff, when on the stand as a witness in his own behalf, was shown certain books, and testified [833]as follows: “I recognize that hook as my own book. I bought and paid for it. It was stolen out of my house. It is one belonging to Harper & Anderson, not Harper & Wheeler. This one we had at the nursery, and the other was down at Stockton. We were selling here. This book will show the amount of trees sold at the nursery. Both of these will show the number shipped down, and this book will show the number sold here. This, the number actually received.....I don’t know how many trees were sold down here. The books will show.” Plaintiff thereupon offered the books in evidence. The defendants objected on the ground that they showed the business between Harper and Wheeler, and were not the books referred to in the complaint. The objection was sustained, and plaintiff excepted. After additional statements by plaintiff in relation to the books, to the effect that one shows the sales at Stockton, and another the sales at Acampo, they were again offered in evidence, and again rejected; the last objection being placed upon the ground that “they show on their face that they do not show the transactions of Harper and Anderson.” It must be presumed that the court made such inspection of the books as to satisfy it that the objection that they showed upon their face that they did not show the transactions of Harper and Anderson were true. If, notwithstanding their apparent irrelevancy, they in fact contained relevant and material evidence for the plaintiff, it was the duty of counsel to point it out, and offer to show the same by the books, and to insert in the record the fact so offered to be proven.