Croft v. Bain

• Decision Date: 13 October 1914
• Docket Number: 3406.
• Citation: 143 P. 960,49 Mont. 484
• Parties: CROFT ET AL. v. BAIN ET AL.
• Court: Montana Supreme Court

143 P. 960

49 Mont. 484

CROFT ET AL. v. BAIN ET AL.

No. 3406.

Supreme Court of Montana

October 13, 1914

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by J. M. Croft and others, copartners, doing business under the firm name of Croft Bros. & Co., against Lee Bain and others. From judgment for plaintiffs, defendant F. J. Peck appeals. Affirmed.

Oscar O. Mueller, of Lewistown, for appellant.

Roy C Cromer, of Lewistown, for respondents.

BRANTLY C.J.

On January 19, 1906, the plaintiffs, as copartners under the firm name of Croft Bros. & Co., with 15 others, among whom was the defendant Peck, executed and delivered to McLaughlin Bros., a copartnership, three joint and several promissory notes for the sum of $1,000 each. These notes were by their terms made payable at the First National Bank at Lewistown the first on July 1, 1908, and the other two respectively on July 1, 1909, and July 1, 1910, with interest at the rate of 6 per cent. per annum. Prior to maturity the notes were all transferred by McLaughlin Bros. to other parties. Payment of them not having been made at maturity, judgments were secured upon them by the respective holders. These judgments were paid by some of the makers, including the plaintiffs, the latter paying the largest amount. This action was then brought by the plaintiffs to compel certain of their associates to reimburse them in the amounts they had paid more than their proportionate share. Though the plaintiffs made all their associates defendants, recovery is sought against only four of them, viz.: S. H. Sutton, John Jelinek F. J. Peck, and C. M. Stubbs. The complaint sets forth in separate counts the amounts claimed as overpayments on each of the notes, specifying the amounts chargeable to each of the four defendants named, and demands a separate judgment against each of them for the sum alleged to be due from him. So far as the record discloses, the defendant Peck alone was served with summons and appeared to make defense. Judgment was rendered against him only. His answer admits that, if any amount can be recovered in this action, there is due from him to plaintiffs only the sum of $138, with interest. It alleges two special defenses: (1) That in December, 1905, the plaintiffs and the defendants entered into a copartnership agreement to purchase a stallion from McLaughlin Bros.; that in pursuance of this agreement they purchased the stallion to be held and owned by them as copartners, the several notes being executed to secure the payment of the purchase money; that each was to have a share in the earnings of the stallion, in proportion of the amount of the purchase price assumed by him; that, by hiring, the stallion has earned a large sum of money; that this sum should have been accounted for and applied to the payment of the notes; that there has never been an accounting had among the copartners; and that the copartnership never having been dissolved, either by agreement or by law, the action cannot be maintained. (2) That the plaintiffs are copartners conducting a business under a fictitious name or designation, not showing the names of the persons interested therein as copartners; that they have not filed with the clerk of the county where the business is conducted a certificate stating in full the names of all the members of the copartnership, nor made publication thereof as required by section 5504 of the Revised Codes, and hence that, under the inhibition declared in section 5505, they cannot maintain this action. Upon these allegations the plaintiffs tendered issue by reply. The cause was submitted to the court without a jury and without request for formal findings. It found generally for the plaintiffs and awarded them judgment for $138, and costs. The defendant has appealed.

Several questions of practice are presented by counsel for plaintiffs touching the course pursued by counsel for the defendant in the preparation of the bill of exceptions and the transcript. It is also claimed that the transcript is not properly authenticated. We shall not notice the contentions in this behalf, as we do not regard any of them even plausibly meritorious.

Though the court made no formal findings, under the rule which prevails in this state, every finding necessary to support the judgment will be implied. Vreeland v. Edens, 35 Mont. 413, 89 P. 735; Bordeaux v. Bordeaux, 43 Mont. 102, 115 P. 25. We must therefore presume that the court found adversely to the defendant upon both the special defenses.

Counsel for defendant makes the contention that the findings are contrary to the evidence. In his argument touching the first defense he insists that it is fully established by an admission by James M. Croft, one of the plaintiffs, the only witness who testified at the hearing. The contention is predicated upon the following statement made by Croft on his cross-examination:

"The purpose of the notes in this action was to secure payment of a stallion bought of McLaughlin Bros. There was an association formed among the signers of the notes, and those who signed the notes were owners of the shares."

Counsel assumes that the only conclusion to be drawn from this statement is that by the purchase the...