Miles v. Miles , 76 Mont. 375 ( 1926 )

MR. JUSTICE STARK

delivered tbe opinion of tbe court.

Plaintiff brought this action for tbe purpose of obtaining an accounting of a partnership alleged to have existed between himself and the defendant, and to secure a division of tbe partnership assets according to the relative interests of the parties.

Under his complaint, the sufficiency of which was not questioned, the plaintiff introduced evidence at the trial tending to prove that from about November, 1919, to November, 1920, he had been running a band of defendant’s sheep on shares; that about the last of October, 1920, the defendant proposed to him that they sell all this band of sheep, except the ewe-lambs, buy more ewe lambs, and that the band of sheep thus provided should be owned by the parties in equal shares; that the plaintiff should run the sheep; that the defendant should furnish one herder to offset plaintiff’s services; that the sheep should be summered on plaintiff’s place and wintered on the defendant’s place; that they should “run them until they are yearlings, and if we take a notion we will sell them again and buy lambs again”; and that the business should be carried on in the name of the defendant, which proposal was accepted and agreed to by plaintiff; and that pursuant to tbis agreement tbe plaintiff contributed to tbe business about 200 yearling sbeep and a half interest in about 900 lambs wbicb were with the band of tbe defendant that be bad been theretofore running on shares; that a part of these sbeep, together with some sbeep belonging to tbe defendant, were sold and the proceeds used to buy more ewe lambs, which were placed in tbe band claimed by plaintiff to constitute tbe partnership property; and that it was arranged that either tbe plaintiff or tbe defendant should have tbe right to buy more sbeep for tbe business. Tbe testimony on tbe part of tbe plaintiff tended further to show that all tbe proceeds derived from tbe sale of tbe sbeep, wool, and increase from tbis band were deposited in bank in tbe name of tbe defendant, and that tbe plaintiff bad authority to, and did, draw checks against this fund to pay tbe running expenses of tbe business; that tbe plaintiff took entire charge of tbe sheep about November, 1920, and retained such charge and conducted tbe business in accordance with the agreement down to the sixth day of January, 1923, on wbicb last-mentioned date tbe defendant dispossessed him and put another man in charge, and bad refused, after demand, to account to tbe plaintiff for any part of the partnership property or any of tbe proceeds thereof.

In bis answer tbe defendant denied all tbe allegations of tbe complaint and as an affirmative defense set up that in tbe fall of 1920 the plaintiff was indebted to him in tbe sum of more than $1,800, and in order to pay tbe same agreed to work for him as camp tender at an agreed salary of $60 per month, and did so work from November, 1920, to January 6, 1923, a period of twenty-six months, during which time be became indebted to tbe defendant in tbe further sum of $487.47; that after crediting plaintiff with tbe amount earned, t-bere still remained due to tbe defendant tbe sum of $727.47, for which amount judgment was demanded against the plaintiff.

At the trial the defendant in his testimony contradicted all of the statements of the plaintiff and the other witnesses introduced in his behalf, tending to establish a partnership relation, and also introduced testimony tending to sustain the allegations of his answer.

The issues of fact thus presented were submitted to a Jury which, in response to special interrogatories, found in favor of the plaintiff on the allegations of partnership. The court adopted the findings of the jury, made other findings of its own, and entered judgment appointing a referee to make an accounting of all of the business transactions of the partnership, and provided for a division of the assets of the partnership upon the coming in of the report of the referee. From this judgment the defendant has appealed.

1. Defendant’s principal contention is that the evidence was not sufficient to justify the findings and decree of the court. With this contention we cannot agree. If the evidence introduced on behalf of the plaintiff was accepted as true, it showed that the parties by mutual consent associated themselves “for the purpose of carrying on business together and dividing its profits between them,” and, consequently, “a corresponding division of its losses”; that each of the parties was empowered to purchase property for the business and incur liabilities in connection therewith. In the absence of an agreement to the contrary, it would follow as matter of law that either of the parties could dispose of the partnership property in the ordinary manner (sec. 7997, Rev. Codes 1921), within the limitations imposed by section 7998. This testimony was sufficient to justify the court’s finding that a partnership existed between plaintiff and defendant. (Secs. 7981, 7982, Rev. Codes 1921; Sanborn Co. v. Powers, 58 Mont. 214, 190 Pac. 990.)

It is the established rule in this jurisdiction that on an appeal in an equity case the findings of the trial court will not be disturbed unless there is a decided preponderance of the evidence against them. The evidence in this case was in tbe first instance submitted to a jury, wbieb resolved tbe disputed questions in favor of tbe plaintiff, and tbe trial court, having bad the superior advantage of bearing tbe testimony and observing tbe witnesses on tbe stand, adopted tbe findings of tbe jury. Although the testimony is in conflict upon each material point involved, we cannot say from tbe record that it decidedly preponderates against tbe court’s findings, and therefore they will not be disturbed.

2. In section 7519, Revised Codes of 1921, it is provided that “an agreement that by its terms is not to be performed within a yea,r from tbe making thereof”, (subdivision 1), is invalid, “unless tbe same or some note or memorandum thereof, be in writing and subscribed by tbe party to be charged, or bis agent.” Tbe defendant urges that since tbe partnership agreement claimed by tbe plaintiff was entirely oral, and under it tbe parties might have continued to operate for more than one year, tbe same was invalid under tbe above section.

In tbe plaintiff’s testimony above referred to be stated that tbe agreement between himself and tbe defendant was entered into tbe last of October or tbe 1st of November, 1920, and was that they would run tbe lambs which were to make up tbe partnership band “until they are yearlings, and if we take a notion we will sell them again and buy lambs again.” Upon bis cross-examination plaintiff stated that there was no agreement as to bow long tbe partnership should continue, and in another portion thereof tbe following questions were asked and answers given:

“Q. This arrangement or whatever it was you bad with Charley Miles that you claim was made in tbe middle of October, 1920, wasn’t to last more than one year, was it? A. Certainly it was; yes.

“Q. What makes you think that? A. Because be said we would sell tbe yearlings again if we wanted to and buy lambs again and run if we wanted to and hold tbe bunch we bad and keep running them, half of them mine and half bis.

“Q. According to your understanding, there was no agreement that this partnership would work out inside of a year? A. No, sir.”

This was all the testimony bearing upon the question of the time of performance. From this it appears that whether the agreement should continue in effect after the lambs which went into the partnership band in October or November, 1920, became yearlings, which would be in the spring of 1921, was wholly optional with the parties. Under the terms of the agreement it might have been fully executed within one year, and therefore it did not come within the inhibition of the statute quoted.

Subdivision 1 of section 2185, Civil Code of 1895, was the same as subdivision 1 of section 7519, supra, and referring to this section in the caSe of Ayotte v. Nadeau, 32 Mont. 498, 81 Pac. 145, this court said: “Subdivision 1, supra, is applicable to those contracts only which by their terms are not to be performed within one year by either of the parties. Therefore, where a contract may be performed by one of the parties within one year, the statute does not apply, especially so where the performance has been fully carried out.”

Referring to a similar provision of the California Code, it is said in Hellings v. Wright, 29 Cal. App. 649, 156 Pac. 365: “The statute does not declare void a contract which may not be performed within a year, or which is not likely to be performed within that period. It includes only agreements which, fairly and reasonably interpreted, do not admit of a valid execution within the year” (citing cases).

Since the contract in question did not by its terms indicate that it should not be performed within one year from the time it was made, but on the contrary was capable of valid performance within that period of time, it did not fall within the provisions of the statute quoted.

3. The defendant also assigns as error an order of the court refusing to strike from the hies the plaintiff’s memorandum of costs and disbursements. The facts in this connection are that the court’s findings of fact and conclusions of law were filed on July 15, 1925. On July 18 the plaintiff prepared, and on July 20 filed, exceptions to the findings of fact approved and adopted by the court. On July 23 counsel for plaintiff served a memorandum of costs and disbursements upon counsel for the defendant and filed the same with the clerk of the court on July 25. On July 28 the defendant moved the court to strike this memorandum of costs from the files upon the ground that it was not filed within the time specified in section 9803, Eevised Codes of 1921, which provides: “The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk and serve upon the adverse party within five days after the verdict or notice of the decision of the court * * * a memorandum of the items of his costs and necessary disbursements in the action or proceeding,” etc.

The above section was taken from California (California Code Civ. Proc., sec. 1033), and first appeared in our laws as section 1867 of the Code of Civil Procedure adopted in 1895. Prior to that time in at least three cases (O’Neil v. Donahue [1881], 57 Cal. 226, Mullally v. Irish Am. Benev. Society [1886], 69 Cal. 559, 11 Pac. 215, and Dow v. Boss [1891], 90 Cal. 562, 27 Pac. 409), the supreme court of that state had held that the object of its provisions was to give the successful party who claimed his costs five days after he had knowledge of the decision to file and serve his memorandum, and that if he did have such knowledge, service of a formal notice of that fact was no't necessary; %. e., that as used in this section the word “notice” is synonymous with the word “knowledge.”

We think this is the correct construction of this provision, and, having adopted the statute after it had been construed by the highest court of the state from which it was taken, it wiE be presumed that our Legislature in enacting it intended that the same rule of construction should prevail in this jurisdiction as in California. (McDonnell v. Huffine, 44 Mont. 411, 120 Pac. 792.)

Since it clearly appears from the record that counsel for plaintiff had knowledge of the “decision of the court” as early as July 18, when they prepared their objections and exceptions thereto, and the memorandum of costs and disbursements was not filed until July 25, or seven days thereafter, it follows that it was not served and filed within the time provided in section 9803, and therefore the defendant’s motion to strike it from the files should have been sustained. We have not overlooked the case of State ex rel. Cohn v. District Court, 38 Mont. 119, 99 Pac. 139, in which it was held that the word “notice,” as used in the expression “after receiving notice of the entry of the judgment” appearing in section 6796, Revised Codes of 1907 (now section 9399, Rev. Codes 1921),- contemplated a written notice served in the method prescribed by law. Our construction of section 9803, supra, is not out of harmony with the rule adopted in that case. By inserting the word “receiving” between the words “after” and “notice,” it will be presumed that it was the intent to give a meaning to section 9399 different from that conveyed by section 9803, which uses only the expression “after notice.” The primary meaning of the verb “to receive,” given in the Century Dictionary, is “to take from a source or agency of transmission; get by transfer; as, to receive money or a letter, to receive gifts.” This contemplates the actual receipt of some physical object or, thing by one from another. So the word “notice” used in the expression “after receiving notice” has reference to something that can be transferred physically from one to another, that is, the written notice mentioned in section 9778, Revised Codes of 1921.

The cause is remanded to the district court, with directions to enter an order striking plaintiff’s memorandum of costs from tbe files, otherwise the judgment is affirmed. Each party will pay his own costs on this appeal.

Modified and Affirmed.

MR. Chief Justioe Callaway and Associate Justices Holloway, Galen and Matthews concur.