Munce v. Munce, 9747
Decision Date | 28 May 1959 |
Docket Number | No. 9747,9747 |
Citation | 96 N.W.2d 661,77 S.D. 594 |
Parties | Mrs. Fred H. (Opal) MUNCE, Special Administratrix of the Estate of Fred H. Munce, Deceased, and Mrs. Fred H. (Opal) Munce, Plaintiffs and Appellants, v. Charles P. MUNCE and William J. Munce, Defendants and Respondents. |
Court | South Dakota Supreme Court |
Mundt & Mundt, Sioux Falls, for plaintiffs and appellants.
Blaine Simons, Sioux Falls, for defendants and respondents.
Plaintiff appeals from a judgment for the defendants.
Plaintiff, as special administratrix of the estate of her deceased husband, Fred H. Munce, and as the sole heir of her husband, brought this action to establish the existence of a partnership from February 25, 1911, to November 26, 1956, between her husband and his brothers, William and Charles, and for an accounting and division of assets and determination of adverse claims.
The three brothers entered into a partnership in 1911 for the operation of a dray and storage business in Sioux Falls. It is admitted that the partnership continued until January 2, 1933. The court among others made the following findings:
The numerous errors assigned present the following contentions: (1) the findings of fact are not sufficiently supported by credible evidence; (2) the court erred in granting motion to strike the second cause of action based upon misrepresentation and fraud of the defendants; (3) the plaintiff was entitled to an accounting and to the production of the partnership records and copies of income tax returns; and (4) the refusal of the court to permit introduction of further testimony after the parties had rested was not warranted.
A partnership as defined by statute is an association of two or more persons to carry on as co-owners a business for profit. SDC 49.0201. Since there is no arbitrary test for determining the existence of a partnership, each case must be governed by its own peculiar facts and the existence of the relationship is a question for the trier of fact except in a case where the evidence is conclusive. The testimony and exhibits in the record before us did not impel a holding that Fred H. Munce and his brothers were partners after January 2, 1933 and to the time of his death. The transfers on that date by decedent of his interest in the partnership property are not questioned. Counsel for the plaintiff assert that the court should have tested the credibility of the defendants by their self-interest and weighing their testimony against facts and circumstances in evidence should have concluded that they testified falsely. Plaintiff offered in evidence the record of real estate mortgages executed by the mother, Caroline Munce, and dated February 25, 1911, to secure the payment of notes totaling the approximate sum of the purchase price of equipment purchased by the brothers for the purpose of carrying on the partnership business. Plaintiff asserts that the mother borrowed the money to finance the partnership enterprise. This the defendants emphatically denied. Counsel maintain that where witnesses swear falsely as to a fact, their entire testimony should be disregarded and that applying this rule and rejecting the testimony of the defendants the court should have inferred that defendants agreed to reconvey to their brother his one-third interest after he obtained a divorce from his first wife. In Smith v. Gasper, 56 S.D. 592, 230 N.W....
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