McDevitt v. Chas. Corriea & Bros.

The appellant petitions for a rehearing, claiming, as he claimed in his briefs, that the record supports no other course by this court than that of ordering the court below to enter judgment in his favor. We thought our position on the proposition was made sufficiently clear in the former opinion. However, the case presents rather an unique situation and that there may be no misapprehension as to our views regarding the points discussed in the original opinion and renewed by the appellant in his petition, we will take the pains to restate them here.

As pointed out in the opinion originally filed herein, the complaint is in the form of a common count as to all the several causes of action therein set forth as for "goods, wares and merchandise" sold and delivered to defendants. The averments of the complaint are, therefore, general in their nature, or not specific as to the contractual relation existing between the defendants in the transactions involving the purchase and sale of "goods," etc. As also likewise shown, the findings are, substantially, in the language of the complaint, and are not, therefore, specific as to the nature of the business relation between the defendants in the business of purchasing the turkeys. It is hence impossible to determine from the findings themselves the theory upon which the case was decided as to such relation. The conclusions of law and the judgment, however, fix the liability of the defendants as joint and several, from which the conclusion would seem fully justified that it was not the theory of the trial court that the contractual relation between the defendants in the transactions involved in the controversy was that of principal and agent. The theory of the decision, as indicated by the conclusions of law and the judgment, is that the relation was of that nature which made the defendants jointly and severally liable, and the only legal relation between two or more persons combined together to carry on a business or some particular transaction is either that of a partnership or a joint adventure. Hence, the only permissible conclusion from the conclusions of law and the judgment is that the court proceeded upon the hypothesis that the business of buying the turkeys was conducted by the defendants either as partners or joint adventurers, albeit the law in this state is that the liability of partners is joint and not joint and several (Civ. Code, sec. 2442; Iwanga v. Hagopian,39 Cal.App. 584 [179 P. 523]; Berringer v. Krueger, 69 Cal.App. 711 [232 P. 467]), which, however, is a matter of no consequence to this discussion, since the judgment does not hold the defendants to the liability arising from the relation of principal and agent. The findings not being specific as to the nature of the relation between the defendants, or, in other words, being entirely silent on that subject, the presumption must be indulged that they support the judgment, even though it is true, as stated in the former opinion, that there is no evidence in the record which would support a specific finding that the contractual relation between the defendants was such as to make their liability either joint or joint and several. This being the situation, it is beyond the province of this court to order the court below to enter or cause to be entered judgment for and in favor of appellant. [6] While it is true that a case will be reversed where it appears that findings vital to the judgment are devoid of sufficient support from the evidence, or that an appeal court may, where justified or required from the very character of the findings, order the trial court to enter judgment upon the findings different from the one entered, it is equally true that a reviewing court is wholly without legal authority to make a finding, even where it is clear that the evidence would support such findings only as would in legal effect be diametrically opposed to those made. (Sprague v.Walton, 145 Cal. 228, 234 [78 P. 645].)

The case of Ewing v. Hayward, 50 Cal.App. 708 [195 P. 970] (referred to in our original opinion), is no authority, as counsel seem to intimate in their petition, for the course which it is insisted should be pursued in the present case, to wit: Reversing the judgment as to appellant and directing the court below to enter judgment for and in his favor. In that case the finding was that the defendants were jointly liable. The evidence clearly showed, according to the opinion therein, that the defendants, in the transaction which was the subject of the action, sustained the relation of principal and agent. The opinion of Mr. Justice Thomas reversed the judgment as to one of the defendants, while the opinion of Mr. Presiding Justice Finlayson, concurred in by Mr. Justice Weller, merely stated: "The lower court, instead of requiring plaintiff to make an election at the close of the case to take judgment against the agent or the undisclosed principal, . . . entered judgment against both. This, I think, is ground for a reversal." Thus it will be seen that the order of Mr. Justice Thomas reversing the judgment was concurred in by his associates but for reasons different from those for which the former conceived that the judgment should thus be nullified. The judgment of reversal contained no specific directions to the trial court as to the course it should follow. In other words, the trial court was not ordered to enter judgment for the defendant victorious on the appeal upon the findings as made. Indeed, the effect of the judgment in that case was merely to reverse the judgment below on the ground that there was no evidence which supported the finding that the defendants were jointly liable. The judgment of this court in this case amounts to the same thing, no more and no less, adding the suggestion, however, that on a retrial, if there be one, a specific finding as to the nature of the contractual relation between the defendants in the transactions concerned here be made.

Counsel in their petition also complain that, in considering and disposing of the case originally, we overlooked certain evidence which they claim unquestionably sustained the position of their client at the trial and here that the understanding was that A.C. Biggerstaff was to purchase the turkeys on his own account and thereupon ship them to Corriea to be by him sold for the former in consideration of the commissions usual in such transactions. We did not, in the original examination of the case, overlook the evidence referred to or any other evidence disclosed by the record. There were, however, unimpeachable reasons for not making specific reference to said evidence in the original opinion. Although a matter of no legal significance here under the peculiar circumstances of this case, it is to be observed that the effect of the evidence referred to by counsel was merely to create a substantial conflict in the evidence as to the nature of the contractual relation existing between appellant and his codefendants in the prosecution of the transactions involved herein. But the omission to consider specifically said evidence in the former opinion was clearly justified upon the reason first hereinabove explained, to wit: That even if the evidence had shown without conflict that the understanding between A.C. Biggerstaff and Corriea was that the former should purchase the turkeys on his own responsibility and ship them to the latter on consignment, it would still be in excess of the power or province, legally, of this court to order judgment for the appellant on the finding, as presumptively made, that he was jointly and severally liable with his codefendants.

Counsel further state that the expense of a retrial should not be had, since it is manifest that the evidence introduced at another trial of the case must necessarily be precisely the same evidence introduced at the trial with which we are here concerned. We cannot assume that such will be the case. Conceding, though, that the evidence received on a retrial of the action will be precisely the same as that received at the first trial, yet that consideration does not and cannot alter the situation. If the theory of principal and agents in the carrying out of the transactions is still maintained by plaintiff on a retrial, and the evidence is the same and the trial court so accepts it, then there would be left open to the court below no other course than to enter judgment for the appellant exonerating him from liability to the plaintiff, upon the proposition, as fully gone into in the former opinion, that the plaintiff, having already a judgment against the agents, cannot also have one against the principal. But whatever may be the decision of the court below upon the question of the contractual relationship between the parties in the transactions here concerned, the findings should clearly and specifically set forth such relationship so that there can be no question from the decision as to the legal nature thereof. Of course, the parties to the action could enter into a stipulation to the effect that such findings may be founded upon the evidence as already received. This manifestly would save the expense of a retrial. This, however, is obviously a mere suggestion which the parties themselves may or may not adopt.

The petition for a rehearing is denied.

Plummer, J., and Finch, P.J., concurred.