Noble v. Faull

• Decision Date: 02 October 1899
• Citation: 58 P. 681,26 Colo. 467
• Parties: NOBLE v. FAULL.
• Court: Colorado Supreme Court

58 P. 681

26 Colo. 467

NOBLE v. FAULL.

Supreme Court of Colorado

October 2, 1899

Appeal from district court, Arapahoe county.

Action by Thomas H. Faull against William Noble for the dissolution of a co-partnership and the appointment of a receiver. There was a decree for plaintiff, and defendant appeals. Affirmed.

The parties to this action in the year 1892 formed a co-partnership to carry on the general merchandising business in the town of Lafayette, Boulder county, Colo. Subsequently its scope was enlarged to include the purchase of certain real estate, and the construction and repair of buildings thereon, the purchase and improvement of a cemetery lot, and the development of a mining claim. In July, 1895, the partners had an accounting of the firm affairs, struck a balance, and made a settlement upon the basis then agreed upon. This action was brought by Faull, the appellee, for a dissolution of the co-partnership, the appointment of a receiver pending suit, and for an accounting from the inception of the partnership, and asked for a decree in accordance with its result, which, it was alleged, would show a large sum due plaintiff. After alleging the matters already stated, the complaint avers that the settlement above mentioned was made and acquiesced in by plaintiff relying upon the integrity of the defendant, who had complete charge of the firm business, and under a misapprehension of the true state of facts, which was due to defendant's fraudulent acts. Plaintiff alleges the fact to be that defendant so falsified the accounts, and so misrepresented the actual state of affairs in settling the co-partnership, as to deceive the plaintiff into making the settlement, greatly to his damage. It is further stated that the defendant drew from the co-partnership large sums of money, collected for the partnership other sums, and took from the firm assets goods and merchandise, and used them in his own individual interests, and has not accounted therefor. An answer was filed by defendant, denying the alleged fraudulent acts charged against him, and upon the issues so joined the court referred the matter to a referee to take testimony, and therefrom to make and report findings of fact. Proceeding under the order, the referee took a large mass of evidence and made his report to the court, in which, inter alia, he found that the defendant was indebted and should pay to the plaintiff, in order to equalize the partnership account between them, the sum of $3,577.14. As the statute in that behalf required, the clerk at once notified the parties and their attorneys of the filing of the report, and, no objections or motion for a new trial having been filed in the court within the time prescribed by the Code, the court approved the findings of fact made by the referee, and made them the findings of the court, and entered a decree thereupon dissolving the co-partnership, and ordering the defendant to pay the plaintiff within five days the sum found to be due the plaintiff, 'and that in default of such payment, that execution issue therefor, and that the receiver heretofore appointed herein be, and he is hereby, authorized * * * to close up the affairs of the said firm of Noble &amp Faull and his receivership; and in order to do so he shall sell at public auction, upon thirty days' public notice * * * and within sixty days from the date of this decree, all of the property, both real and personal, belonging to said firm of Noble & Faull; * * * that he report said sale or sales to this court; * * * that out of the proceeds of such sale he shall, first, pay all debts of his receivership, and second, all debts of Noble & Faull existing at the time of his appointment as receiver, and, third, the judgment of plaintiff against defendant herein, including costs; and the remainder, if any, shall be divided equally between plaintiff and defendant.' A. B. Seaman and Lucius Weinschenk, for appellant.

Doud & Fowler, for appellee.

CAMPBELL C.J. (after stating the facts).

The defendant has appealed from this decree, assigning a large number of errors. The abstract of the record consists of 318 printed pages, to which there is an appendix in fine type of 30 pages, containing numerous statements of account and various exhibits produced at the trial. It should be stated that counsel now appearing for appellant did not participate in the hearing before the referee, and have come into the case only since it has reached this court. We are admonished by them that we will get very little light from a reading of this abstract, which was made, as they say, principally because it seemed to be required by the rules. Nevertheless, we are asked to make a cursory examination of it, in order that we may see for ourselves that the objections made by them in argument are borne out by the record. We have examined the abstract with sufficient thoroughness to satisfy ourselves that the findings of the referee and the decree of the court are sustained by the evidence. In our discussion we shall limit ourselves to the matters argued by appellant, and give no consideration whatever to the many other alleged errors which counsel have specified in their assignment, but not argued to the court.

1. It is insisted that this court shall sift and weigh the evidence to ascertain whether the decree is justified by it, because without hearing any testimony or seeing the witnesses, the district court's approval of the referee's report does not give to the findings the weight that attaches to the verdict of a jury or the finding of a court made upon oral testimony to which it has listened. To this are cited Jackson v. Allen, 4 Colo. 263; Miller v. Taylor, 6 Colo. 41; Sieber v. Frink, 7 Colo. 148, 2 P. 901; Bank v. Newton, 13 Colo. 245, 22 P. 444; Bates v. Wilson, 14 Colo. 140, 24 P. 99. In ...