De Laney v. W. Stock Co.
| Decision Date | 24 February 1910 |
| Citation | 19 N.D. 630,125 N.W. 499 |
| Parties | DE LANEY et al. v. WESTERN STOCK CO. |
| Court | North Dakota Supreme Court |
This cause was tried in the court below as an equity case; all of the issues having been tried and determined by the court without a jury with the implied consent of all parties. This being true, defendant will not be permitted to urge in this court for the first time that the issues presented a case for trial by jury instead of by the court. Whether the contract set forth at length in the opinion created a partnership relation between the parties, and whether the issues presented by the pleadings were legal or equitable in character, is not determined, as no such questions were raised in the court below, and appellant, under well-settled rules of appellate procedure, will not be permitted to urge in this court a theory of the case contrary to that upon which the case was tried and decided in the trial court.
Regardless of the nature of the issues, the district court possessed the requisite jurisdiction to try and decide the same without a jury, where the parties impliedly consented thereto.
Evidence examined, and it is held, that the findings and conclusions of the trial court are substantially correct and amply supported by the testimony.
Appeal from District Court, McIntosh County; Allen, Judge.
Action by B. C. De Laney and others against the Western Stock Company. Judgment for plaintiffs, and defendant appeals. Affirmed.A. W. Clyde, for appellant. Rourke & Kvello and W. S. Lauder, for respondents.
This litigation arose in the district court of McIntosh county. Plaintiffs De Laney Bros. recovered judgment, from which defendant appeals and requests a review of the entire case in this court.
The issues as framed by the pleadings are simple. By the complaint it is alleged that at all times therein mentioned plaintiffs, H. C. and J. J. De Laney, were and are copartners doing business under the firm name of De Laney Bros., and that defendant is a foreign corporation. It is next alleged that on October 11, 1904, the plaintiffs and defendant entered into an agreement as follows:
The complaint then alleges the following facts:
“(4) That since the commencement of said partnership the defendant has not performed its duties in accordance with the said agreement of partnership hereto annexed, and has been guilty of negligence in carrying out the said agreement, in that it failed to care for the said sheep described in said articles of agreement hereto annexed, and failed to dip the same so that the said sheep became infected with the disease of scab, whereby great loss was caused to the partnership, said plaintiffs, and that the defendant failed to bear its share of the expenses of running and caring for said sheep, and that the defendanthas been guilty of willful misconduct and gross negligence in that it removed from the flock of said sheep the male sheep or bucks, and allowed said bucks to run with sheep of L. Silver, which were known by defendant to be and which were infected with the scab, whereby the said sheep last aforesaid infected the said bucks with the scab, and said bucks in turn infected the sheep of the partnership with said disease of scab.
(5) That if the said partnership is allowed to continue in force great damage will be caused to the plaintiffs and the partnership business. Wherefore, for and by reason of all the acts of...
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