Dinkelspeel v. Lewis

• Decision Date: 24 November 1936
• Docket Number: 1962,1961
• Parties: DINKELSPEEL v. LEWIS; INTERMOUNTAIN ASS'N. OF CREDIT MEN v. LEWIS, ET AL
• Court: Wyoming Supreme Court

62 P.2d 294

50 Wyo. 380

DINKELSPEEL v. LEWIS;

INTERMOUNTAIN ASS'N. OF CREDIT MEN v. LEWIS, ET AL

Nos. 1961, 1962

Supreme Court of Wyoming

November 24, 1936

Rehearing denied February 23, 1937, Reported at: 50 Wyo. 380 at 408.

APPEALS from the District Court of Uinta County; H. R. CHRISTMAS Judge.

Action by the Intermountain Association of Credit Men, a corporation, against Hank M. Lewis and Joe Dinkelspeel co-partners doing business under the firm name and style of The Buffet, consolidated with an action by Joe Dinkelspeel against Hank M. Lewis. Defendant Lewis filed a counterclaim in each action. From the judgments, Hank M. Lewis appeals. See Rehearing, 65 P.2d 246.

Reversed in part with instructions.

For the appellant there was a brief and oral argument by P. W. Spaulding of Evanston, Wyoming.

Where two actions have been consolidated involving the same issues, and the trial court finds the issues in one case one way and makes contrary findings in the other case, we do not believe that the general rule against disturbing judgments based upon conflicting evidence should be followed by an appellate court. Wilde v. Amoretti Lodge, 41 P.2d 512. A preexisting debt is sufficient consideration to support a chattel mortgage, 41 C. J. 386; Chaffee v. Lumber Company, 43 Neb. 294; Longfellow v. Barnard, 58 Neb. 612; Greig v. Mueller, 46 L.R.A. (L.R.A.) 724; 69 A. L. R. 436. No partnership was ever formed between Dinkelspeel and Lewis. Sec. 81-202, R. S. 1931; 47 C. J. 643. The evidence does not support an inference of partnership, nor does it present facts creating an estoppel. 47 C. J. 643. Merely sharing profits of a venture does not create a partnership as to third parties. 47 C. J. 697; Sec. 81-308, R. S. 1931; Cross v. Amoretti, 9 P.2d 148; 47 C. J. 901. It is respectfully submitted that in the action of Dinkelspeel v. Lewis, No. 1961, the court erred in holding the chattel mortgage void and ordering its cancellation. In the action of Intermountain Association of Credit Men v. Lewis and Dinkelspeel, the court erred in its findings and judgment that a partnership existed between the defendants and in rendering judgment on that hypothesis against defendant Lewis upon the accounts sued upon.

For the respondents, there was a brief and oral argument by Louis Kabell, Jr. of Evanston, Wyoming.

The case of Wilde v. Amoretti Lodge, 41 P.2d 512, cited by appellant decides no question such as we have in the case at bar. We, of course, agree that if there is substantial evidence in the record to sustain the trial court's finding upon conflicting evidence, such finding must stand on appeal. Kumor v. Scottish Union and National Ins. Co., (Wyo.) 33 P.2d 916; Finance Corporation of Wyoming v. Commercial Credit Company, (Wyo.) 123 P. 414; Lumber Company v. Luikart, (Wyo.) 256 P. 84; In re Shaul, (Wyo.) 30 P.2d 478; Bank v. Ennis, (Wyo.) 34 P.2d 1; Perko v. Comm. Co., (Wyo.) 259 P. 520; Big Horn Power Company v. State, (Wyo.) 148 P. 1110; Gray v. Elliott, (Wyo.) 255 P. 593. On the question of the cancellation of the chattel mortgage, we believe the case of Bank v. Northern Trust Company, (Wyo.) 270 P. 163 is applicable. Tobin v. Town Council of City of Sundance, (Wyo.) 17 P.2d 666. Two appeals upon the same record were considered, and the rule regarding conflicting evidence was before the court. Davison v. Nicholson, (Wyo.) 263 P. 605. We do not believe that this court will pass upon the credibility of witnesses. Wettlin v. Jones, (Wyo.) 234 P. 515; Griffin v. Rosenblum, (Wyo.) 23 P.2d 348; Carter Oil Company v. Gibson, (Wyo.) 241 P. 219; Worland v. Davis, (Wyo.) 233 P. 227; Hunt v. City of Laramie, (Wyo.) 181 P. 137; Wyman v. Quayle, (Wyo.) 63 P. 989; Caswell v. Ross, (Wyo.) 270 P. 537; Boyle v. Mountford, (Wyo.) 270 P. 537; Bissinger & Co. v. Weiss, (Wyo.) 195 P. 527. The actions were consolidated only for purposes of trial and should not be considered as one case. The findings by the trial court relate to separate cases. 1 C. J. 1121; 64 C. J. 35; Insurance Company v. Hillman, 145 U.S. 285; Ramsey v. Johnson, 52 P. 1084; Lumiansky v. Tessler, 99 N.E. 1051; Bishop v. Hawley, 238 P. 284; Hinton v. Saul, (Wyo.) 259 P. 185; Hilliard v. Douglas Oil Fields, (Wyo.) 122 P. 626. The chattel mortgage was properly cancelled. 41 C. J. 386 cited by appellant is not in point, nor are any of the other cases cited by appellant on this point. Under the testimony in this case, there is no showing of pre-existing debt. In order to validate a chattel mortgage, the relation of debtor and creditor must exist between the parties, which was not true in the present case. 11 C. J. 446; Graham v. Blinn, 3 Wyo. 746; Bolln v. La Prele Live Stock Co., (Wyo.) 196 P. 748. A partner may transfer his interest in the partnership to a co-partner, even though the firm is insolvent. 47 C. J. 796. A partnership may exist without articles of agreement. 47 C. J. 647. The rule stated in 47 C. J. 899 as to partnership relations applies in this case. No written articles are necessary. 47 C. J. 727; Gray v. Kalin, (Ia.) 110 N.W. 909. Each partner is liable for partnership debts. Evans v. Bank, (Ariz.) 19 P.2d 1062; Sneider v. Company, (Wyo.) 200 P. 1011; Lawer v. Kline, (Wyo.) 270 P. 1077; Rue v. Merrill, (Wyo.) 297 P. 375; O'Connor v. Vander Veen, 234 N.W. 101; Claughton v. Johnson, 38 P.2d 612; Walter v. Kressman, (Wyo.) 169 P. 3; Richards v. Richards, (Wyo.) 186 P. 1107; Fisher v. Power Company, (Colo.) 29 P.2d 641; 20 R. C. L. 823. Questions as to the admission or exclusion of evidence are not argued in appellant's brief, and are therefore waived. Williams v. Yocum, (Wyo.) 263 P. 607; Development Company v. Brannan, (Wyo.) 275 P. 115; Wilde v. Amoretti, 33 P.2d 399. It is respectfully submitted that no error was committed by the trial court and each of the judgments should be affirmed.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

These two cases, brought here by direct appeal from the district court of Uinta County, were consolidated for the purpose of trial, the evidence which was introduced before the court sitting without a jury being submitted to be considered so far as applicable in each case. Complete records have been brought to this court, except that one transcript of the evidence was filed in the district court and ordered to constitute and by reference to be adopted as such transcript in the record on appeal in both causes. By order made here, upon stipulation of the parties, the two cases have been briefed and argued together, and one opinion will suffice to dispose of both of them.

I.

The litigation at bar designated as No. 1962 was commenced October 18, 1934, by the Intermountain Association of Credit Men, a corporation, as plaintiff, at present respondent and usually hereinafter referred to as the "plaintiff," against Hank M. Lewis and Joe Dinkelspeel, doing business under the firm name and style of "The Buffet," as defendants, Lewis being the appellant here and Dinkelspeel a respondent also. Thereby, the plaintiff as assignee of certain claims for merchandise, etc., alleged to have been sold, delivered and furnished to said defendants as partners, doing business under the firm name of "The Buffet," sought to recover from them the amounts claimed to be due thereon.

Plaintiff's position sets forth six causes of action, the first thereof being upon an alleged account for goods sold said defendants by Keeleys, Inc., a Utah corporation, in the sum of $ 11.16; the second upon a claim for $ 96.46, and the third upon a claim for $ 214.37, both of these being for goods sold by the Western Furniture Co., also a Utah corporation; the fourth upon a claim for $ 183.65 for electric signs, power, fuel and service, and the fifth upon a claim for $ 416.00 for two refrigerators, all having been sold and furnished by the Utah Power & Light Company, a Maine corporation; and the sixth cause of action upon an account for merchandise, in the sum of $ 98.67, sold by the Utah Wholesale Grocery Co.

The defendant Dinkelspeel interposed no defense to the action. His co-defendant, Lewis, however, filed a separate answer and counterclaim to plaintiff's pleading, in which he denied the existence of the alleged partnership between him and Dinkelspeel; denied that he ever requested to be sold him, or that there was ever delivered to him, the merchandise, etc. mentioned in the first, second, fourth, fifth and sixth alleged causes of action; and denied that any amounts were due from him to the plaintiff thereon. Concerning the stated third cause of action, he denied the existence of the partnership as claimed and that the goods therein mentioned were sold or delivered to said defendants. He avers, however, that the Western Furniture Company sold to him, Lewis, the said merchandise, less certain enumerated items, totaling charges of $ 16.70; and he admits that $ 190.17 remained unpaid on the account. In this connection also the defendant Lewis set out a counterclaim for the asserted failure on the part of the Western Furniture Company to furnish the merchandise as agreed, offered to return the same, and claimed a credit of $ 342.00 thereon, and, in consequence, an overpayment of $ 151.83, for which he asked judgment.

Plaintiff filed a reply consisting for the most part of a general denial of the new matter set out in the counterclaim and answer of the defendant Lewis.

The district court in its judgment found that a partnership existed between Dinkelspeel and Lewis and ordered a recovery against them of the several amounts claimed by plaintiff with interest, except as to the third cause of action, where a recovery of $ 25.10 only was allowed. Lewis and the plaintiff both saved exceptions, Lewis generally and plaintiff to that part of the judgment...