Prows v. Hawley

• Decision Date: 18 October 1928
• Docket Number: 4576
• Citation: 72 Utah 444,271 P. 31
• Court: Utah Supreme Court
• Parties: PROWS v. HAWLEY et al

271 P. 31

72 Utah 444

PROWS v. HAWLEY et al

No. 4576

Supreme Court of Utah

October 18, 1928

Appeal from District Court, Sixth District, Sevier County; Nephi J Bates, Judge.

Suit by A. C. Prows, doing business as the Sevier Valley Mercantile Company, against J. A. Hawley and others, doing business under the partnership name of Hawley, Anderson & Hinckley. From a judgment for plaintiff, Hawley and another appeal.

REVERSED AND REMANDED.

Bagley Judd & Ray, of Salt Lake City, for appellant.

Sterling K. Heppler, of Richfield, and Badger, Rich & Rich, of Salt Lake City, for respondent.

STRAUP J. THURMAN, C. J., and CHERRY, HANSEN, and GIDEON, JJ., concur.

OPINION

STRAUP, J.

An opinion was heretofore filed reversing the judgment as against Hawley and affirming it as against Hinckley. On Hinckley's petition a rehearing was granted as to him and the case reargued and resubmitted. On a re-examination of the record, we now are of the opinion that the judgment should be reversed also as to him. The former opinion is thus modified accordingly and this substituted in lieu thereof.

This is a law case tried to the court. Judgment was for the plaintiff against all three defendants individually. Hawley and Hinckley appeal. They claim the complaint does not state a cause of action; that their general demurrer thereto ought to have been sustained.

The substance of the complaint is: That between April, 1924, and July, 1925, "the defendants," at Salina, Utah, purchased oats from the plaintiff of the value of $ 1,993.18, which were delivered to them at "their special instance and request"; that they agreed and promised to pay such sum; that a demand of payment was made, but the defendants refused to pay. Judgment was prayed "against said defendants" in the amount stated with interest. The judgment was that "the plaintiff do have and recover of and from J. C. Hawley, O. A. Anderson, and I. N. Hinckley, defendants," the sum stated with interest, amounting to $ 2,368.25.

The appellants contend that the action attempted to be stated is against a partnership, or against the defendants based on a partnership relation, or growing out of it; that in such case it was necessary to allege in the body of the complaint the existence of a partnership; and because such an allegation was not made therein, as it is not, the general demurrer ought to have been sustained.

The only reference made in the complaint to a partnership is in the caption, "J. C. Hawley, O. A. Anderson, and I. N. Hinckley, doing business under the partnership name of Hawley, Anderson & Hinckley, defendants." Notwithstanding such recitals in the caption, the action, nevertheless is one only against the defendants individually. Gutheil v. Gilmer, 27 Utah 496, 76 P. 628; Maclay Co. v. Meads, 14 Cal.App. 363, 112 P. 195, 113 P. 364. As stated in the last-cited case, such words in the caption "do not and cannot make the partnership a party defendant in the action. The words referred to are merely descriptive--that is, they do no more than unnecessarily describe or identify the particular persons proceeded against, in their individual capacities, whatever may have been the intention of the pleader in so using them." Upon such a complaint no judgment properly could have been taken against the partnership. This action must thus be regarded as one against the defendants in their individual capacities only, that they as individuals purchased the oats and agreed to pay for them; and so, and not otherwise, does the complaint charge. As is seen, it is alleged that the defendants, between April, 1924, and July, 1925, purchased the oats from the plaintiff; that the oats were delivered to them at Salina, Sevier county, Utah, at their special instance and request; that they agreed to pay for them, but refused to make payment. As against the defendants individually the complaint undoubtedly states a cause of action. The demurrer was thus properly overruled.

Whether under such allegations, to show a joint or several individual liability of the defendants, it was competent to prove a partnership when none was alleged, or that the defendants were members of a partnership, or that their liability grew out of or was occasioned because of their relation to a partnership, a proposition concerning which the authorities divide (Austin v. Beall, 167 Ala. 426, 52 So. 657, Ann. Cas. 1912A, 510, where the majority and minority rules are stated), we need not now decide. Without objection proof was made that the defendants, for purposes presently to be stated, constituted a partnership under the firm name of Hawley, Anderson & Hinckley. No complaint is made of such proof. So that question is not before us.

It is further contended that the court failed to make sufficient and proper findings on all of the material issues as disclosed by the pleadings and the evidence. We have already referred to the material issues presented by the complaint. The answers of the defendants were specific denials of all of the material allegations of the complaint, except that the oats were purchased by the defendant Anderson for his individual and sole use and benefit and that he alone was responsible for the payment thereof. There were no affirmative allegations in the answer requiring a reply, and none was filed. Thus the presented and triable issues, as to the appellants, were as alleged in the complaint and specifically denied by them. That is to say, the court found that between April 22, 1924, and July 21, 1925, "the defendants purchased of the plaintiff certain goods consisting of oats in the sum of $ 1,993.18; that said goods on or about said days were delivered to the defendants by the plaintiff at Salina, Sevier county, Utah, at defendants' special instance and request, and said defendants agreed and promised to pay the said plaintiff the said sum for the said goods so purchased; that demand was made upon defendants for the said amount and that the defendants refused and still refuse to pay the same; that there is now due thereof from the said defendants to the plaintiff the sum of $ 1,993.18, together with interest thereon," etc. It in effect is claimed that these findings are insufficient because the court failed to make a finding as to the question of partnership, especially since, as it is urged, the theory on which the case was tried by the plaintiff was that the obligation sued on was a partnership obligation and the appellants liable because members thereof. In support of the contention the appellants cite and rely on Implement Co. v. Cleaveland, 32 Utah 1, 88 P. 670; Everett v. Jones, 32 Utah 489, 91 P. 360; Utah Ass'n of Creditmen v. Home Fire Ins. Co., 36 Utah 20, 102 P. 631; Investment Co. v. McCurtain, 39 Utah 544, 118 P. 564; Munsee v. McKellar, 39 Utah 282, 116 P. 1024; Hall v. Sabey, 58 Utah 343, 198 P. 1110; Baker v. Hatch (Utah) 70 Utah 1, 257 P. 673. These cases hold, and it is the undoubted rule, that until the court has found on all the material issues raised by the pleadings, the findings are insufficient to support a judgment; and that findings should be sufficiently distinct and certain as not to require an investigation or review to determine what issues are decided. Looking merely to the pleadings, the findings are within the rule and are sufficient. The general rule is that ultimate facts may be stated in the findings in the same way they are stated in the pleadings if there well and sufficiently stated, not by a mere reference to the pleadings, but stated in the language of the pleadings, as was here done. 2 Hayne, New Tr. & App. (Rev. Ed.) § 242; 8 Standard Ency. Pro., p. 1025. As is seen, all of the material issues are presented by the complaint. We have already held that the complaint states a cause of action without containing any allegation of partnership. The findings being in the language of the complaint are thus sufficient to support the judgment, which may not be reversed because not supported by sufficient findings. But within the issues presented was an issue tried without objection, that of partnership and the liability of appellants because members thereof. No findings were made as to that issue unless an affirmative finding in such respect is necessarily implied from the finding that the oats were purchased by and delivered to the defendants at their special instance and request. Therein lies the chief cause of complaint of appellants. The respondent defends the judgment largely on the fact of partnership and seeks to hold appellants individually liable because members thereof. To consider that leads to the evidence and to the further question raised as to the sufficiency of the evidence.

It is shown that the three defendants, under the name of Hawley Anderson & Hinckley, entered into a contract with the state road commission of Utah to construct three sections of road known as F. A. P. 17-A, 17-B, and 67, in Millard county, Utah. Just what the relation of the three defendants was to each other is not definitely disclosed except as may be inferred from the joint name, but in the trial was spoken of and referred to as a partnership. Whatever the relation was, it was testified to that Hawley was president, Anderson manager, and Hinckley secretary and treasurer. We think the evidence sufficient to show that the relation was a partnership. It, however, did not do any of the construction work. It sublet the grading of section 17-B to Anderson, a member of the firm. The partnership had the undoubted right to do that. Farney v. Hauser, 109 Kan. 75, 198 P. 178; Condon v. Callahan, 115 Tenn. 285, 89 S.W. 400, 1 L.R.A. (N.S.) 643, 112 Am. St. Rep. 833, 5 Ann. Cas. 659; Midwest Reserve Tr. Co. v. Pioneer Cattle Loan Co., 119 Kan. 528, 240 P. 587. The hauling of gravel, the...