Morrow v. Norton

VAN FLEET, J. We deem this appeal frivolous. Judgment was for the plaintiffs in the court below, and the defendant Norton appeals from the judgment, and from an order denying his motion for a new trial.

1. The only point made against the judgment is that the demurrer to the complaint should have been sustained for want of facts sufficient to constitute a cause of action. There is nothing in the point. The complaint counts on two several promissory notes made by the firm of McPride & Pease to plaintiffs, and an account for merchandise sold and delivered by a third party to defendants and assigned to [935]plaintiffs. These several obligations are set np in separate counts, each complete in itself, setting forth that at the time of incurring them defendants were carrying on and conducting a livery-stable business as partners under the name of McBride & Pease, and that the notes were made and the account incurred by defendants as such partners, and that they have not been paid. It is then further alleged that since the making of the notes and the account defendant Norton has promised to pay them. It is urged that the original obligations of McBride & Pease and the separate promise of Norton cannot both be counted on in the same action. But the point does not arise under the demurrer. The complaint states a cause of action against the defendants jointly, and the allegation of the independent promise of Norton might be disregarded as surplusage, and yet leave the complaint sufficient. It is further urged that the separate promise of Norton was one which, under the law, must be in writing, and it is not so averred. Assuming this to be true, the failure to so allege does not make the complaint demurrable. Where a contract is alleged which, under the law, is required to be in writing, and the complaint is silent as to the manner in which it was made, the implication is that it was made in the manner required: Barnard v. Lloyd, 85 Cal. 131, 24 Pac. 658.

2. The second and only other point made is that the evidence does not sustain the finding that the defendants were partners. We have examined the evidence, and it is sufficient to say that, while somewhat conflicting, we think it amply sufficient to warrant the finding in question, and the judgment cannot, therefore, be disturbed. We think the character of the record in this ease should not pass unnoticed. The statement on motion for new trial covers about one hundred and fifty pages of the transcript. It is plainly nothing more nor less than a copy of the shorthand reporter’s notes of the trial, with a head and tail attached. It is replete with all the unnecessary repetition and irrelevant side-bar matter which so readily and almost unavoidably finds its way into the record at the trial in the lower court under our present system of verbatim stenographic reporting. Nothing in the way of unnecessary matter seems to have been eliminated, or even permitted to escape. There is not a pretense, from beginning to end, of stating anything in narrative form. Everything