Miller v. Loo

• Decision Date: 16 December 1958
• Docket Number: NO. 4007.,4007.
• Citation: 43 Haw. 76
• Parties: WILLIAM M. MILLER v. CLARENCE T. LOO.
• Court: Hawaii Supreme Court

43 Haw. 76

WILLIAM M. MILLER

v.CLARENCE T. LOO.

NO. 4007.

Supreme Court of the Territory of Hawai‘i.

Argued November 13, 1958.

Decided December 16, 1958.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT COURT FIRST CIRCUIT, HON. CALVIN C. MCGREGOR, JUDGE.

Syllabus by the Court

The generally accepted doctrine is that an appeal should be taken from a judgment and that it does not lie from an order denying a motion for new trial.

Where the record on appeal shows that the appeal was mistakenly taken from an order denying a motion for new trial and that the appellant's intention was to appeal from the judgment, the appeal should be treated as an appeal from the judgment.

Under H.R.C.P., Rule 52 (a), this court will not set aside the findings of fact of the trial court unless this court is left with a definite and firm conviction that a mistake has been committed by the trial court.

Record in this case does not leave this court with a definite and firm conviction that a mistake has been committed by the trial court in finding that no partnership existed.

J. Harold Hughes (also on the briefs) for appellant.

Frank D. Gibson, Jr. ( Henshaw, Conroy & Hamilton with him on the brief), for appellee.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY MARUMOTO, J.

Appellant, William M. Miller, sued appellee, Clarence T. Loo, in the circuit court for accounting, appointment of master and discovery, alleging the existence of a partnership between them, since August 15, 1950, in a quarrying business known as Kailua Limestone Company. After a trial, judgment of dismissal was filed in the circuit court, pursuant to a decision in appellee's favor by the circuit judge. Appellant moved for a new trial, which motion was denied. Thereupon, within the time allowed under H.R.C.P., Rule 73 (a), appellant filed a notice of appeal, which stated that the appeal was taken “from the order entered in the above court and cause on August 1, 1956.” The mentioned order is an order denying appellant's motion for new trial. No appeal has been taken specifically from the judgment.

The generally accepted doctrine is that an appeal should be taken from a judgment and that it does not lie from an order denying a motion for new trial. This doctrine has been adhered to in Libby, McNeill & Libby v. Alaska Industrial Board, 215 F. (2d) 781; St. Luke's Hospital v. Melin, 172 F. (2d) 532, and Bass v. Baltimore & Ohio Terminal R. Co., 142 F. (2d) 779. It is not clear from the reports whether the appellants in these cases mistakenly appealed from denials of motions for new trials instead of from judgments. In Atlantic Coast Line R. Co. v. Mims, 199 F. (2d) 582, the court treated an appeal from the denial of a motion for new trial as one from the judgment where the record on appeal as a whole disclosed that the appellant intended to appeal from the judgment. The courts ruled similarly in Sobel v. Diatz, 189 F. (2d) 26, and Sun-Lite Awning Corp. v. E. J. Conklin Aviation Corp., 176 F. (2d) 344. In the latter case, the court concluded from its examination of the statement of points to be relied upon on appeal, filed in connection with the notice of appeal, that the appellants intended to appeal from the order dismissing the involuntary petition in bankruptcy, although the notice stated that the appeal was from an order overruling a motion to alter and amend the order of dismissal. The order overruling a motion to alter and amend was equivalent to an order denying a motion for new trial. The court stated that “the notice of appeal must be construed in connection with the statement of points to be relied on; and, when so construed, it is clear that the purpose of appellants was to present for review the errors committed in the order dismissing the petition.”

We think that where the record on appeal shows that the appeal was mistakenly taken from an order denying a motion for new trial and that the appellant's intention was to appeal from the judgment, the appeal should be treated as an appeal from the judgment. The rules of civil procedure are to be construed, not with technical exactitude, but to expedite the due administration of justice. (H.R.C.P., Rule 1; Milton v. United States, 120 F. [2d] 794.) Here, appellant filed a designation of record on appeal simultaneously with his notice of appeal. It is evident from the designation that he intended to appeal from the judgment.

The case being properly before this court, we now turn to a consideration of the merit of the appeal.

Appellant does not have a written partnership agreement with appellee. He bases his claim on his own testimony and the testimonies of witnesses that appellee, in their presence, stated that appellant was his partner.

The business of Kailua Limestone Company is conducted on premises in Kailua, Oahu, owned in fee simple by Bishop Estate. Appellee founded the business early in 1949 when he started negotiations with Bishop Estate for a lease of the premises and received permission to enter pending the completion of the lease. He obtained the lease, effective April 1, 1949, and running for a period of ten years to March 31, 1959.

Initially the business was not profitable. As of December 31, 1950, it showed a cumulative operational loss of $22,955.30. As of the same day, appellant had invested $39,309.90 in it. Also, as of the same day, the net value of its plant and equipment, after depreciation, was $39,672.81, but it had current trade accounts payable of $40,829.74.

When appellee started the business, he had difficulty in finding a suitable person to take charge of the quarrying operations. He, therefore, was looking for such person when he became acquainted with appellant about the middle of 1950. After watching appellant work for about two months, appellee entered into conversations with appellant which resulted in the latter taking charge of the quarrying operations. The present controversy arises from the difference between appellant's version and appellee's version of the conversations.

Appellant's version is that appellee agreed to take him in as a partner in the business as of August 15, 1950, assign the lease to the partnership and contribute to it all of the plant and equipment then in use in the business, divide the profits and assume the losses in equal shares, and devote his full time to the supervision of the office, books and records; that appellant, in turn, agreed to contribute to the partnership his equipment then on the quarry site, assume joint liability for the debts of the business amounting to about $40,000, and devote his full time to the supervision of quarrying operations; and that they agreed to establish a drawing account of $500, later increased to $550, per month for each of them.

Appellee's version is that appellant was hired on a straight salary of $500, later increased to $550, per month, with the added incentive that he would be given a half interest in the business when the business was “out of the hole,” provided that he faithfully and satisfactorily performed the work expected of him, and that the expression “out of the hole” was amplified to mean when all accounts for capital expenditures were paid in full, all operating accounts payable were on a thirty-day basis, and his investment in the business was returned to him in full together with a proprietary allowance of $500 per month.

Thus, the principal difference between the two versions is that appellant's version contemplated the immediate formation of a partnership while appellee's version contemplated the transfer of a one-half interest in the business by appellee to appellant in the future upon the occurrence of specified conditions.

The circuit judge accepted appellee's version. He held that there was no partnership at any time between appellant and appellee and that the conditions on which appellant was to be given a one-half interest in the business never occurred.

Appellant states the questions involved on this appeal as follows:

“1. Was it prejudicial error for the court to not place any probative value on the admissions of partnership with the appellant by the appellee, although testimony of such admissions came from ten witnesses?

“2. Was it prejudicial error for the court to dismiss the admissions of partnership with the appellant by the appellee, as were adduced from the testimony of ten witnesses, by concluding that:

‘* * * it is common in Hawaii for people to refer to another with whom they associate in business one way or another as their partner, or to use the term partner or partnership in a very loose manner, even though there be no actual co-partnership between them in the legal sense.’?

“3. Was it prejudicial error for the court to conclude that the moneys received by appellant were salary, and that the moneys received by the appellee were withdrawals, although the amounts received by both parties were exactly alike in amount and increased identically on or about January 1, 1953?

“4. Was the judgment of the court contrary to law and the weight of the evidence?

“5. Was it prejudicial error for the court to fail to grant the motion for new trial?”

Rule 3 (b) (3) of the rules of this court provides that ordinarily no point will be considered which is not set forth in or necessarily suggested by the statement of questions involved. Thus, in considering this appeal, we may confine ourselves to the points set forth in or necessarily suggested by the foregoing questions. Also, we need not consider the question as to whether the circuit judge committed prejudicial error in denying the motion for new trial, for appellant has not argued that point.

Among the findings of fact made by the circuit judge are the following:

(1) Appellee at all times bore all of the expenses of the business;

(2) Creditors of the business looked solely to appellee for the payment of its debts;

(3)...