Lawrence v. Westlake

• Decision Date: 18 July 1903
• Citation: 73 P. 119,28 Mont. 503
• Parties: LAWRENCE v. WESTLAKE et al.
• Court: Montana Supreme Court

73 P. 119

28 Mont. 503

LAWRENCE v. WESTLAKE et al.

Supreme Court of Montana

July 18, 1903

Appeal from District Court, Silver Bow County; John Lindsay, Judge.

Action by David Lawrence against Edward Westlake, A. W. Gratton, and Anna M. Westlake. Judgment for plaintiff. Defendant Anna M Westlake appeals. Reversed.

This action was commenced by the plaintiff, Lawrence, to recover the sum of $397.79 from the defendants A. W. Gratton, Edward Westlake, and Anna M. Westlake, on an account stated for goods, wares, and merchandise sold and delivered to, and for money paid for the use and benefit of, such defendants between May, 1895, and January 1, 1896. It is alleged that the defendants were copartners, constituting a mining partnership. The complaint then alleges: "That thereafter, on or about the 1st day of January, 1896, at Butte, Montana, an account was stated between the plaintiff and the said defendants, and upon such statement a balance of three hundred and ninety-seven and 79/100 dollars ($397.79) was found due the plaintiff from the said defendants." The defendants Gratton and Edward Westlake made default. The defendant Anna M. Westlake answered, denying that she was ever associated with the defendants Gratton and Edward Westlake, or with either of them, as a copartner, or in working any mine or procuring any goods, or in transacting any business mentioned in the complaint. The answer further denies that the plaintiff ever sold any goods to, or paid any money for, or that any account was ever stated with, or any amount ever found due from, any copartnership of which the answering defendant was a member. Upon the trial, the court gave the following instructions: "No. 14. You are instructed that in such cases as the one at bar, where an action is brought by a third person against a copartnership to enforce a copartnership liability, less strictness of proof is required to show that a certain person was a copartner than is required to show partnership in cases brought by one partner against another. No. 15. You are instructed that a partnership may be shown by the separate admissions, acts, declarations, or conduct of the parties, or by the acts of one, the declarations of another, and the acknowledgment or consent of a third." The jury returned a verdict in favor of the plaintiff for $201.98. From the order denying a new trial, the answering defendant appeals.

Robt. McBride and F. T. McBride, for appellant.

E. S Booth, for respondent.

HOLLOWAY J. (after stating the facts).

Instruction No. 14 above is fatally defective.

1. The jury is told that this is an action brought by a third person against a copartnership to enforce a copartnership liability. One of the principal issues raised by the pleadings, and upon which the evidence is in irreconcilable conflict, was whether or not a copartnership of which the answering defendant was a member had any existence in fact, and, if so, whether there was any copartnership liability, and, notwithstanding this issue, both questions are determined by the court in its instructions, leaving the jury practically nothing to decide. The court ought not to assume the existence of a disputed state of facts. In Territory v. Scott, 7 Mont. 407 17 P. 627, this court said: "Where the evidence is clear and conclusive as to the existence of the particular fact and there is no evidence to the contrary, or where facts are admitted, an instruction assuming such facts as true will not work a reversal of the judgment; but if there is the least conflict in the evidence, or if the evidence is in any wise...