Miller v. Vermurie , 7 Wash. 386 ( 1893 )

The opinion of the court was delivered by

Hoyt, J.

By their amended complaint plaintiffs sought to recover of the defendants, as co-partners: on their first cause of action for hauling, transporting and packing certain goods; and on their second cause of action for certain merchandise sold by one Langfitt to the defendants as such co-partners, the account for which was alleged to have been assigned by said Langfitt to the plaintiffs. The defendant Fortier answered, admitting all the allegations of the complaint. The defendant Yermurie by his answer denied substantially all the allegations of the plaintiffs, and specially denied the existence of any co-partnership as between himself and the defendant Fortier. Upon the issues made by the answer of Yermurie the cause went to trial, and after the introduction of proofs on the part of the respective parties the court gave to the jury, among others, the following instructions:

“If you find, from the evidence that the plaintiffs hauled or packed goods and property owned jointly by the defendants, then your verdict will be in favor of the-plaintiffs and against both the defendants for such sum as you may find due for such packing. ,

“I further instruct you that if you find from the evidence that the defendant Fortier was joint owner with the defendant Vermurie of the property and goods packed by the plaintiffs, that he is liable with the other defendant for the services rendered. It does not matter whether plaintiffs or Langfitt knew that Vermurie was such joint owner at the time the services were rendered and the goods sold, provided that you find from the evidence that said defendants were such joint owners.”

To the giving of which instructions the defendant Vermurie excepted, and the sole question presented for our consideration is as to whether or not under the issues made by the pleadings such instructions correctly stated to the jury any portion of the law of the case. The issue to which these instructions were pertinent, if pertinent at all, was one which raised the question as to the existence of the co-partnership between the two defendants, and by these instructions, taken together, the court told the jury that for the purposes of the case such partnership would be established so far as to make both defendants liable by the simple fact that the goods in relation to which the labor was performed were jointly owned by the two defendants. In other words, the jury were told that if they found that the goods belonged jointly to the defendants the owners thereof would be liable for anything which might be done in relation thereto at the request of one of the owners, even although the other owner had no connection whatever with such request or with the labor performed in relation to such goods. Such instructions warranted the jury in finding that the simple fact of joint ownership constituted the defendants co-partners so far as was necessary to establish their joint liability for any act done in reference to such goods at the request of either of the joint owners. We are unable to hold that such consequences flow from the simple fact of joint ownership of personal property. Such fact, as we understand the law, would not render either of the joint owners liable for services performed in inference to the property unless such owner in some manner was connected with the services so performed. Nor can we agree with the contention on the part of the respondent that the eri’or incident to the giving of these instructions was cured by the fact that the court, in other instructions, correctly defined the partnership relation and the facts necessary to establish it. Such instructions were inconsistent with the ones above set out. And while they correctly stated the entire law of the case, it is impossible for us to say that the jury gave exclusive force to them and entirely disregarded the ones above set out.

The respondents make the further point that, however erroneous these instructions may have been, the exceptions taken thereto by the appellant were insufficient to authorize this court to enter into an examination thereof. The language of the exception, as it appears in one place, might be open to the objection that it was too general to challenge the attention of the court to the particular error complained of, but in immediate connection with the instructions set out in the bill of exceptions, and, so far as appears from said bill, of the same date as the general exception above referred to, appears what is denominated an assignment of errors, in which the particular instructions objected to are set out; and it is stated in connection therewith that the giving of them is the only error of which the appellant desires to avail himself on appeal. And there being nothing whatever to show that this particularizing was not done at the same time that the instnictions were given, and the trial court having settled the same as a part of the bill of exceptions in immediate connection therewith, it must be given force as a definite exception to the instructions to which objection was made.

It follows that for the error in giving the instructions complained of the judgment must be reversed, and the cause remanded for a new trial.

Dunbar, C. J., and Scott, Stiles and Anders, JJ\, concur.