Warner v. Harris

McCOMB, J. From a judgment in favor of plaintiff after trial before the court without a jury in an action for an accounting, defendant appeals.

The essential facts are these:

Plaintiff filed a complaint containing two counts, the first to establish a trust, the second for the dissolution of a partnership and an accounting.

Defendant filed a general and special demurrer to each count of the complaint, which demurrer was overruled. Thereafter following a trial the court entered a judgment in favor of plaintiff, and among others made the following finding: “VII That it is true as alleged in the ‘Third, Separate and Distinct Defense’ of the Answer that the agreement described in paragraph III of these Findings of Fact was not in writing, and that there was no note or memorandum thereof subscribed by the defendant or any agent of his, and it is true also that the effect of said agreement was to create a partnership and a trust; that except as thus found to be true, each of the other allegations and conclusions of said ‘Third, Separate and Distinct Defense’ is untrue.”

Subsequently in denying defendant’s motion for a new trial the court amended paragraph VII to read as follows: “That it is true as alleged in the ‘Third, Separate and Distinct Defense’ of the Answer that the agreement described in paragraph III of these Findings of Fact was not in writing, and that there was no note or memorandum thereof subscribed by the defendant or any agent of his and it is true also that [133]said agreement was one purporting to create a partnership or a trust or a joint adventure; that except as thus found to be true, each of the other allegations and conclusions of said ‘Third, Separate and Distinct Defense’ is untrue.”

The court also made an additional finding, number IX, which reads thus: ‘ ‘ That the two alleged causes of action set forth in the complaint do not relate to or describe two separate and distinct sets of facts, but are merely the pleader’s alternate constructions of one and the same set of facts; and in respect to the allegations of paragraphs II, III, IV, V and VI of the Second, Separate and Distinct Cause of Action set forth in the complaint, the findings of the court as to the agreement and transactions between the parties are as hereinabove set forth, and hence need not he repeated, the conclusion of this court being that the parties were joint adventurers.” (Italics ours.)