Brewer v. McCain

• Decision Date: 01 July 1895
• Citation: 41 P. 822,21 Colo. 382
• Parties: BREWER v. McCAIN. [1]
• Court: Colorado Supreme Court

41 P. 822

21 Colo. 382

BREWER v. McCAIN. ^[1]

Supreme Court of Colorado

July 1, 1895

Appeal from district court, Arapahoe county.

Action by John McCain against Benn Brewer for breach of an alleged partnership agreement, for an accounting, and for specific performance of a part thereof. From a judgment and decree for plaintiff, defendant appeals. Affirmed.

The original complaint alleged the formation of a partnership by the plaintiff, McCain, and the defendant, Brewer, on the 1st day of January, 1887, the purpose of which was the manufacture and sale of brick in the city of Denver, and that such firm, as Brewer & McCain, carried on said business for about two years. It was alleged that just prior to, and contemporaneous with, the execution of the written agreement of partnership, the defendant agreed to deed to the plaintiff an undivided half interest in certain lands, and this agreement to convey was one of the inducements which led the plaintiff to form the partnership. In pursuance of this agreement touching the sale of real estate, Brewer executed his deeds for the interest to which plaintiff was entitled for which the plaintiff, in turn, executed his promissory notes for the price agreed upon, and the deeds and the notes were placed in escrow in the German National Bank of Denver the deeds to be delivered when the notes were paid; and as by their arrangement, Brewer had charge of the books and the management of the business of the firm, an accounting was to be made in December of each year, and McCain's share of the profits was to be applied by Brewer on the payment of the notes. There are other allegations of the complaint, not necessary to mention; but it is sufficient to say that the complaint charged a violation by the defendant of the trems of the partnership, and prayed for a disolution, and distribution of the assets in accordance with the rights of the parties. Issues were finally joined, and trial begun, and after proceeding for some time--either induced thereto by a ruling of the court that certain testimony offered by the plaintiff was inadmissible, as the complaint then was, or from information developed on the trial, or possibly for both reasons--the plaintiff asked, and, against the defendant's objection, was granted, leave to file an amended complaint to correspond to the facts. This amended complaint, and a subsequent amendment thereto, alleged that negotiations looking to the partnership were begun by these parties prior to September, 1886, and that, as the result of repeated conferences, the partnership agreement was consummated some time during the latter part of that year. The partners selected as a site for their brickyard a tract of land known as the 'Kate Clark Tract,' but after its purchase the partners concluded to change the site. They accordingly sold this tract, and purchased from the Hallack Lumber Company two other certain tracts of land, aggregating about 20 acres, together with certain chattels and appurtenances to the yard, for the manufacture of brick, the titles to which were taken in the name of Brewer, as the plaintiff alleges, for the joint benefit of himself and the plaintiff. In pursuance thereof, and as further evidence of the same, Brewer executed his deed for the undivided half of the Hallack lands to McCain, as grantee, and McCain gave his notes therefor, as averred in the original complaint. The amended complaint then proceeds by alleging that contemporaneous with, and just after, the making of these deeds and notes, what are called 'Articles of Special Partnership,' in writing (which were the same as those set up in the original complaint), were signed by the partners, relating particularly to the future conduct of the business, by the terms of which Brewer was constituted the manager of the financial affairs of the partnership, with power to receive and take charge of all its moneys and assets, while McCain's duties consisted in the superintendence of the manufacture of brick, and the delivery of the same as ordered. In addition thereto is a provision relating to these deeds and notes in escrow, which is as follows: 'It is further agreed that, on the first Monday in December of each and every year, there shall be made and had a settlement and accounting of all the said partnership business, and, after deducting all the actual expenses of said partnership, the net profits thereof shall be divided between the said parties; the profits or share of said John McCain to be retained by said Benn Brewer to pay the notes of said John McCain, now in escrow, with deeds, in German National Bank of Denver, and, after said notes and interest are fully paid the profits thereafter to be equally divided.' A breach of this agreement by defendant was charged,--the failure of Brewer to give McCain all his share of the profits realized from the sale of the Kate Clark tract, the refusal of Brewer to apply McCain's profits to the payment of the escrow notes, and his failure to deliver the escrow deeds. A prayer for dissolution of the partnership follows, and for equitable relief, etc. To this amended complaint a demurrer was filed by the defendant upon the ground, among others, that several distinct causes of action were improperly united in one count of the complaint. It was overruled by the court, whereupon the defendant filed his answer, denying the material allegations of the amended complaint. Thereafter other slight amendments were made to the amended complaint and to the answer, and a replication was filed. After the suit was begun, by agreement of parties all personal property of the firm was converted into money, and the same held subject to the decree to be rendered. Upon a trial to the court without a jury, findings of fact were made, and the equities declared to be with the plaintiff. An accounting was taken, upon which the court determined that the plaintiff's share in the profits of the copartnership at the time of the trial amounted to the sum of $6,133.47, and that the plaintiff was entitled to a deed of conveyance for an undivided one-half interest in the two Hallack tracts of land described in the escrow deeds, upon the payment by the plaintiff to the defendant of the residue of the notes after deducting therefrom plaintiff's said profits. A finding was made to the effect that, while the Kate Clark tract of land was intended by the parties to be a part of the partnership property, the defendant, when he sold the same, had accounted to the plaintiff for the latter's share of the profits realized from the sale. Upon this appeal, therefore, this branch of the case is entirely eliminated. From this judgment and decree the defendant appeals, and assigns 71 grounds of error.

C. J. Hughes, Jr., for appellant.

Benedict & Phelps, for appellee.

CAMPBELL J. (after stating the facts).

In view of our conclusion, it would be unprofitable, and, within the limits of an opinion, practically impossible, to notice in detail these various assignments; but they may be grouped for discussion, as they have been by counsel in their argument, under several different heads.

1. The first objection urged is to the ruling of the court permitting the plaintiff to file the amended complaint. The granting of this permission was justifiable, as the exercise of a reasonable discretion by the court, unless the cause of action in the amended complaint was a departure from that in the original. The objection taken, first by demurrer afterwards by answer, that three separate and distinct causes of action are improperly joined in one count of the complaint, might be summarily disposed of by saying that this objection should be taken by motion, otherwise it is waived. Bliss, Code Pl. (3d Ed.) § 423. But, upon more substantial grounds, neither of these objections is tenable. There was no change of the cause of action. It is said that the first of the three causes of action blended in one statement is based upon the breach of a written agreement of partnership; the second is for profits arising from the sale of the Kate Clark tract of land; and the third, for the specific performance of an agreement by Brewer to sell and convey to the plaintiff an undivided half interest in the Hallack tracts of land. The objection, it will be observed, is not that several causes of action have been improperly united in the same complaint, but that there is not a separate statement in the complaint of the three causes of action which are tacitly recognized as proper to be joined in one...