Peterson v. Armstrong

• Citation: 66 P. 767,24 Utah 96
• Decision Date: 25 November 1901
• Docket Number: 1323
• Court: Utah Supreme Court
• Parties: EMILY PETERSON, Appellant, v. JAMES C. ARMSTRONG, H. O. HARKNESS, and D. D. JONES, Partners Doing Business Under the Firm Name and Style of THE IDAHO LUMBER COMPANY, Respondents

66 P. 767

24 Utah 96

EMILY PETERSON, Appellant, v. JAMES C. ARMSTRONG, H. O. HARKNESS, and D. D. JONES, Partners Doing Business Under the Firm Name and Style of THE IDAHO LUMBER COMPANY, Respondents

No. 1323

Supreme Court of Utah

November 25, 1901

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action to recover $ 419 alleged to be due as the balance of the purchase price of certain real estate. From a judgment in favor of the defendants, the plaintiff appealed.

AFFIRMED.

A. J Weber, Esq., and Thos. Maloney, Esq., for appellant.

The ruling of the court on the demurrer is res adjudicata only as to the legal sufficiency of the complaint. Keater v Hook, 16 Iowa 23.

Such a judgment is not upon the merits, within the meaning of the rule claimed by appellant. If authorities are wanting to sustain the proposition, they are found in the cases of: Gilman v. Rives, 10 Pet. 298; Lanfen v. Kedgenise, 1 Mod. 207; Stevens v. Dunbar, 1 Black 56; Sherry v. Forsenian, 1 Ind. 56; Kendal v. Talbot, 1 Marsh 321; 1 Chitty's Pl. (7 Am. Ed.), 288; Delaney v. Reade, 4 Iowa 292.

"If a suit is disposed of upon any ground which does not go to the merits of the action, the judgment rendered will prove no bar to another suit. Hughes v. U.S., 4 Wall. 232; Jordan v. Siefert, 18 L.Ed. 303; Gould v. Bk. Co., 126 Mass. 25; Verhein v. Schultz, 91 U.S. 526; Detroit v. Houghton, 57 Mo. 326; 42 Mich. 459; 4 N.W. 171, 287; Rogers v. Higgins, 57 Ill. 244.

It will doubtless be insisted that this court can not review the findings. This rule does not obtain where there is no testimony whatever to support the findings. Nor does it prevail where the findings attacked are not within any issue made by the pleadings.

This court has held that where the findings of facts on a material issue are clearly in contravention of the preponderance of evidence and so manifestly erroneous as to amount to an oversight or inadvertence on the part of the court, the facts so found and the decree entered therein may be modified by the Supreme Court so as to conform to the weight of evidence. Salt Lake City v. Colledge, 13 Utah 522; Wickliffe v. Owings, 17 How. 47-53; Elizabeth v. Am. N. Pavement Co., 97 U.S. 646.

Herbert R. Macmillan, Esq., for respondent Armstrong.

It is incumbent upon the plaintiff to prove that this property was purchased for the Idaho Lumber Company and that Jones had special authority to bind the firm. For the company was engaged in the lumber business and not in the real estate business. Guthiel v. Gilmer, 23 Utah 84, 63 P. 817; Cavanaugh v. Sailsbury, 22 Utah 465; 63 P. 39.

The plaintiff failed to in any manner connect Armstrong with the transaction or show authority for transacting the business in his name and can not therefore hold him. Haynes v. Tacoma Ry. Co., 34 P. 932; York v. Fortinberg, 25 P. 163; Miller v. Hallock, 13 P. 541.

The findings of fact of the court will not be set aside if there is any evidence to support them. Klopenstine v. Hayes, 20 Utah 45; Stevens v. Imp. Co. 20 Utah 267; McKay v. Farr, 15 Utah 261; Henderson v. Adams, 15 Utah 30; Watson v. Mayberry, 15 Utah 265.

In an equity cause, if the decree is supported by the evidence, but the findings are not, the decree will not be reversed if it is the one that should be made on the evidence as a whole. Maxfield v. West, 6 Utah 379; Fisk v. Patton, 7 Utah 399.

Where an equity case is tried by the court and the record contains evidence justifying the decree, no errors in admitting or rejecting testimony will be considered on appeal. Rogers v. Cook, 8 Utah 123; S. L. F. & M. Co. v. Mammoth, 6 Utah 351.

And the same is true in a case at law, tried without a jury. Victoria M. Co. v. Haws, 7 Utah 515; 160 U.S. 303.

Abbot R. Heywood, Esq., and Hugh A. Tait, Esq., for respondent Harkness.

Respondent Harkness insists that at least as to him the former case is res adjudicata, for a "judgment on demurrer which goes to the merits of the action is a complete bar to another suit on the same cause of action." Messenger v. N.E. M. L. Ins. Co., 59 F. 416; Bouchaud v. Dias, 3 Denio 238; City of Los Angeles v. Mellus, 58 Cal. 16; Schroers v. Fisk (Colo.), 16 R. R. 285; Hardy v. Hardy, 31 Cal. 906; Carlin v. Brackett (Minn.), 37 N.W. 342; Lindley v. U.S. Mng. Co., 106 F. 468.

Apart from the question of res adjudicata raised in this action, it is apparent that the real ground upon which the plaintiff seeks to recover from the answering defendants in this case is, that the whole transaction was a partnership transaction by which Jones, the managing partner, could cause the other partners to be bound. Even treating this claim as a balance due upon the purchase price of the property from which the partnership received benefit, yet we must start with the general proposition that a partnership is not bound by any purchase, whether made individually or in the name of the firm, if the purchase is outside of the actual and apparent scope of the partnership business. Irwin v. Williar, 110 U.S. 499.

Consent to an unauthorized act of a partner is not to be presumed upon slight and unconclusive circumstances. Wilson v. Williams, 28 Am. Dec. 518.

The burden of proof to establish such assent or authority rests with the party alleging it. Corwin v. Suydam, 24 Ohio St. 209; Fordice v. Scribner, 108 Ind. 85.

BARTCH, J. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

This action was brought to recover $ 419, alleged to be due as the balance of the purchase price of certain real estate. It is alleged in the complaint and admitted in the several answers that on May 1, 1893, and until January 1, 1894, the defendants were partners doing business under the firm name and style of Idaho Lumber Company. It is shown in evidence that during such time the firm was engaged in the business of dealing in lumber, and that defendant Jones was the managing partner. The record shows that there were two actions brought previous to this one to recover the same sum sued for herein. The instrument upon which these suits were based was set forth verbatim in the complaint in this case, and reads as follows: "Ogden City, Utah, May 22, 1893. James C Armstrong has this day purchased of Emily Ashby 3.4 front by 26.66 rods deep, in lot 6, block 10, South Ogden Survey, Ogden, Weber county, Utah, and has paid in full, except $ 450, and there is now pending a suit against said Emily Ashby. Now, it is understood and agreed that said sum of $ 450 shall be retained by said Armstrong as a security on the warranty in conveyance to him by her until such time as it becomes finally determined that said land and property shall not be holden on account of any lien or trust thereon, or claim or judgment against said Emily Ashby. At once, however, on such determination in her favor, said sum of $ 450 shall become due and payable. This agreement shall be deposited and remain in Commercial National Bank. Emily Ashby. Emily Peterson." It will be noticed this agreement is executed only by the plaintiff, and not in the name of the firm, nor by any member thereof. It appears in evidence, however, that defendant Jones made the purchase without the knowledge or consent of either of the other partners, and had the agreement made and the deed executed in Armstrong's name, and that neither of the papers were delivered to Armstrong. The real estate conveyed was residence property, and, it seems, was situated remotely from the place where the business of the firm was conducted, and was never used for the purpose of that business. The agreement, over which this controversy arose was...