Owen v. Oviatt

• Decision Date: 20 April 1885
• Court: Utah Supreme Court
• Parties: HENRY OWEN v. LEWIS OVIATT

6 P. 527

4 Utah 95

HENRY OWEN v. LEWIS OVIATT

Supreme Court of Utah

April 20, 1885

APPEAL from a judgment of the district court of the third district.

The opinion states the facts.

Judgment affirmed with costs.

Mr. J. D. Lomax, for appellant.

Messrs. Hoge & Jonasson, for respondent.

BOREMAN, J. ZANE, C. J., and EMERSON, J., concurred.

OPINION

BOREMAN, J.:

The respondent brought an action against appellant in the third district court, for a dissolution of partnership, for an accounting and for an injunction restraining the sale or transfer of property alleged to have been bought with partnership money.

The complaint was demurred to, by appellant, upon the grounds:

1. That the complaint did not state facts sufficient to constitute a cause of action,

2. That the complaint was "multifarious and improperly confounds together distinct causes of action not belonging to the same class," and,

3. That the complaint was ambiguous, unintelligible and uncertain.

The demurrer was overruled. The complaint alleges in general terms, that a business venture, a partnership, was entered into between appellant and respondent, for quarrying and selling limestone; the leasing by them of a stone quary for that business; the carrying on of said business of quarrying and selling limestone until the tenth of October, 1882, when they concluded to sell their lease, and did sell it; that appellant was authorized to act for both in negotiating a sale; that appellant sold the lease for three thousand dollars, but represented to respondent that he sold it for two thousand dollars, concealing the true consideration; that respondent was thus deprived of five hundred dollars, etc. Taking all the allegations together we think they are sufficient to show a partnership. They show a common enterprise entered into by appellant and respondent, and carried on by them for their common and joint benefit, and further, that the partnership property was sold.

The second and third grounds of demurrer are not sufficiently specific. The demurrer should show wherein or in what respect the complaint is ambiguous, unintelligible or uncertain, and in what respect it is multifarious and improperly confounds together distinct causes of action.

We see no error in the action of the court below.

Let the judgment be affirmed with costs.

ZANE, C. J., and EMERSON, J., concurred.