Silveira v. Reese

COOPER, C. The plaintiff and defendant were partners • in the manufacturing of bricks. This action was brought to obtain a dissolution of the partnership, and a settlement of the partnership accounts. The case was tried before the court, findings filed, the accounts settled, and the judgment ordered and entered dissolving the partnership as prayed. The plaintiff made a motion for a new trial, which was denied, and this appeal is from the judgment and order denying the motion for a new trial.

The appellant contends that the evidence is insufficient' to sustain the findings in many respects, but we do not deem it necessary here to follow counsel through all the various specifications of insufficiency. We have carefully examined-the evidence, and find it sufficient as to all material findings.

The first specification argued is that the evidence does not sustain the finding “that defendant did not agree after the original contract of partnership to advance money to carry on the business.” The defendant testified: “I never promised and agreed to put in $1,000 after the original $500 put [113]into the business by me was exhausted.....I did not agree to furnish the said firm with all the money necessary to carry on the business.” The evidence shows that the partnership continued under the original contract. The various conversations between the parties as to the necessity for more money to carry on the business, and the fact that defendant loaned the partnership money to carry on the business, did not change the original contract of partnership.

It is specified that the evidence does not sustain the finding “That appellant and respondent had a settlement of their partnership accounts at the time the first kiln was burned.” By looking at the record, we do not discover any such finding. The finding is: “At the time that the said kiln of 110,000 bricks was burned, the said plaintiff and defendant had a settlement as to money advanced by the said defendant for the said partnership, and it was then ascertained and agreed that the defendant had advanced for and on behalf of the plaintiff the sum of $234.87.” The defendant testified: “I had loaned or advanced to him [the plaintiff] the. sum of $234.87, and on that day I went to see him, and wrote out a promissory note for the amount, bearing interest at the rate of eight per cent per annum, and read and explained it to the plaintiff and his wife, who was present, and he signed it in my presence, and the note has not been paid.” And in regard to the same transaction the plaintiff testified: “Defendant came to my house, and we had a settlement of all our accounts up to that time. It then appeared that defendant had advanced a considerable amount of money more than I had. He then had me to sign a paper which he said represented the interest I was to pay him on his advances. ” It is claimed that the evidence is insufficient to justify the finding that defendant laid out and expended $230.56 for wood used in making bricks, and that only part of the wood was used in making bricks. The defendant did testify that he bought thirty cords of wood, and that he used ten cords in burning the kiln, and sold the remaining twenty cords. It does not appear how much per cord the wood cost, nor how much the twenty cords were sold for. Neither does it appear that the partnership was charged with the twenty cords. The defendant testified that he paid “$230.56 for wood partly used in burning the same; that all the said sums of money we^ paid,