Haight v. Tryon

California Supreme Court Nov 10, 1893 No. No. 14,974Published

Before: Belcher

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Holding. The court held that a pleading labeled as a 'cross-complaint' that merely addresses the same partnership transaction as the complaint is legally an answer, and that the evidence presented at trial was insufficient to support the findings.

Issues

Whether a notice of motion for a new trial directed at 'findings' rather than the 'decision' is sufficient under the code.
Whether a pleading labeled a 'cross-complaint' that addresses the same transaction as the complaint constitutes a cross-complaint or an answer.
Whether the evidence presented at trial was sufficient to justify the court's findings.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Under our statute the findings constitute the decision”

“The so-called “cross-complaint” was not in fact, as we think, a cross-complaint, or anything more than an answer.”

“It is immaterial what the defendant called his pleading. Whether he designated it an “answer” or “cross-complaint,” its character will be determined by the court from the facts set up”

Synopsis

New Trial.—A Notice of Motion for a New Trial, Directed against the “findings” rather than against the “decision” of the court, is sufficient, as under Code of Civil Procedure, sections 632, 633, the findings constitute the decision.

Pleading—Cross-complaint—Admission by Failure to Answer.— In an action for partnership accounting defendant filed a “cross-complaint” which related to the partnership transaction set forth in the complaint, alleged the partnership contract in somewhat different terms, and contained only matters in avoidance, or constituting a defense or counterclaim. Held, the averments of the cross-complaint were not admitted by failure of plaintiff to answer, as the cross-complaint was really an answer to the complaint, and therefore its averments were deemed controverted under Code of Civil Procedure, section 462.

Evidence—Sufficiency to Sustain Findings.—The Evidence was Insufficient to justify findings in accordance with the averments of the cross-complaint where the evidence on the, part of plaintiff was positive that there was no such contract between the parties as that alleged in the cross-complaint, and defendant merely testified that the cross-complaint was true.

BELCHER, C. This is an action for an accounting between partners. The material facts set out in the complaint may be briefly stated as follows: On or about the first day of March, 1885, the plaintiff and defendant, at the county of Del' Norte, in this state, entered into a verbal contract whereby they agreed to go into the business of buying, slaughtering and selling beef cattle and mutton sheep, and to divide the profits of the business equally between them. In [762]pursuance of this contract they commenced the said business, and carried it on until February, 1888, when they discontinued it. Plaintiff put into the business a certain amount of money and a certain number of cattle and sheep and certain merchandise, and the defendant put in a certain amount of money and a certain number of cattle and sheep. From the sales the plaintiff received a certain sum of money, and the defendant a larger sum. During the continuance of the business the animals were all disposed of except four head of cattle, of the value of $100, which defendant converted to his own use. No accounting has ever been had, and there is left in the hands of defendant the sum of $3,799.84, and $100 for the said cattle appropriated by him to his own use, one-half of which sums is due and owing to the plaintiff; wherefore plaintiff prays for an accounting and judgment. The defendant answered the complaint, denying that he entered into the contract set out therein, and averring that on or about the twentieth day of February, 1885, at the county of Curry, state of Oregon, plaintiff and defendant entered into a verbal contract whereby they agreed to furnish Charles Tryon and Ben Adams money, .cattle and sheep that they might enter into the business of buying, pasturing, selling and slaughtering beef cattle and sheep; that the profits and losses were to be shared equally between plaintiff and defendant after defendant Tryon should receive from plaintiff Haight $1,000 per year for the use of his ranch in Curry county, Oregon. Then follow denials of most of the other allegations of the complaint, and an averment that defendant put into the business the sum of $7,000. The answer prayed for an accounting, and that defendant have judgment against the plaintiff for the amount found due. At the time of filing the answer the defendant also filed a separate paper, denominated a “cross-complaint,” in which he set forth that on or about the twentieth day of February, 1885, at the county of Curry, state of Oregon, plaintiff and defendant entered into a verbal contract whereby they agreed to furnish Charles Tryon and Ben Adams money, cattle and sheep for them to enter into the business of buying, slaughtering and selling cattle and sheep; that the cattle and sheep were to be kept on Lone ranch, a large farm in said county of Curry, then and up to November, 1888, owned by defendant, and out of the said business defendant was to receive first $1,000 per year

Haight v. Tryon

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