Steiner v. McMillan , 59 Mont. 30 ( 1921 )

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

The complaint in this case consists of two counts. The first count alleges that about the month of March, 1916, plaintiff and defendant entered into a copartnership for the purpose of carrying on the business of handling sheep and other livestock in Powell county, Montana, and that in fulfillment of such partnership agreement they purchased together about 1,100 head of sheep which they jointly fed, owned, ranged and kept; that on or about June 1, 1916, defendant gave notice of the termination of the copartnership, and thereupon appropriated to his own use all of said sheep, excluded plaintiff from any participation in. the management, conduct or control thereof, and denied that plaintiff had any interest whatever therein. The plaintiff prays for dissolution of the partnership, that an accounting be had, and that upon such accounting the obligations of the firm be paid and the net assets distributed equally between said copartners. The second count is substantially the same as the first, except, that, instead of alleging a copartnership, it alleges a co-.ownership, but the prayer for relief is similar. The answer denies all allegations of the complaint and sets up an afSrmative defense in the nature of accord and satisfaction. Judgment was entered in favor of defendant. Plaintiff appeals from the judgment and from order overruling motion for new trial.

Prior to trial plaintiff demanded that the case be submitted [1] to a jury, upon the theory that the second count sets forth a cause of action in conversion upon which either party is entitled to a trial by jury. An examination of the complaint, however, fails to show that either cause of action is in conversion. Each count is framed upon the theory that there was either a copartnership or a co-ownership in the property in question; that defendant, in his handling of such property, had incurred expenses which were unknown to plaintiff, but which should be ascertained by the court and credited to defendant; that the obligations of the firm or co-owners should be paid; and that the court should determine from all of such facts the respective rights of the parties in the net assets and decree that such net assets should be equally distributed between them. Each count presents a cause of action in accounting—clearly an equitable case. (Demars v. Hudon, 33 Mont. 170, 82 Pac. 952.) It has uniformly been held in this state that in equity cases neither party has an absolute right to a trial by jury, and therefore it was not error for the trial court to refuse plaintiff’s demand for jury trial.

Error is assigned upon the rulings of the court in refusing [2, 3] to admit in evidence certain documents consisting of papers from the office file of the forestry office at Anaconda. These papers consist of copies of certain letters written by the forest supervisor, some of which were addressed to Steiner and McMillan, and some to other parties in the forestry service; a memorandum made by the district ranger in connection with the application of Steiner and McMillan for grazing permit; and a copy of a certain notice from the office to Steiner and McMillan. No foundation was laid for the admission of these copies as secondary evidence, but all the exhibits were offered in evidence as public records, and it is now the contention of appellant that all of said papers should have been received in evidence on that theory.

To constitute a public record, it must be a written memorial made by a public officer, which he must be authorized by law to make. (34 Cyc. 586.) None of these papers come within this definition. They were not memorials, nor were they authorized or required to be kept by law. They were merely incidental to the administration of the affairs of the office. They were in the nature of correspondence and private memoranda of a public official, which, while they may relate to public records, do not in themselves constitute public records. The grazing permit above referred to was never issued, and therefore it never became a public record. These exhibits not being public records, the court did not err in excluding them. [4] The court was right in its ruling for the further reason that, even though the exhibits were public records, they were not identified as required by statute, to entitle them to be admitted in evidence. If they were public records at all, they were records of a department of the United.States government and could be admissible only under the provisions of Revised Codes, section 7924, subdivision 9.

It is urged by appellant that the evidence decidedly preponderated on the side of plaintiff, and that this court should find as a matter of fact that plaintiff was co-owner of the sheep in question. This court has held in a number of cases [5] that the findings of the district court will never be reversed except where the evidence clearly preponderates against them. (Bosanatz v. Ostronich, 57 Mont. 197, 187 Pac. 1009; Heilman v. Loughrin, 57 Mont. 380, 188 Pac. 370.) In this case no formal findings were made, nor was there any request [6] for findings. In the absence of express- findings, every finding necessary to support the judgment of the court will be implied. (Croft v. Bain, 49 Mont. 484, 143 Pac. 960.) The evidence shows a decided conflict upon the issue as to the alleged co-ownership of the sheep, and this court is unable to say that the decree is against the preponderance of the evidence. Under these circumstances there can be no justification for overruling the conclusions of the trial court as evidenced •by its decree.

The judgment and order are affirmed.

(Affirmed.

Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.