P. Floyd & Co. v. I. Efron & Co.

Stayton, Associate Justice.

The balance due. jbo Hewhall & Thatcher was due by the appellants as well as the appellee, and as against both, would have borne interest from the first of January, 1883, in favor of Hewhall & Thatcher. When settled by Efron, he ought to be as fully protected in the way of interest as would have been Hewhall & Thatcher, had they been compelled to enforce their demand against both by suit, in so far as may be necessary to reimburse him for the sum paid to extinguish as to Hewhall & Thatcher an interest bearing indebtedness. The charge of the cotirt directed the jury to allow interest on one-half of the sum paid to Hewhall & Thatcher by Efron from the time payment was made This was correct, and furnishes no ground for complaint.

There was no evidence tending to show mismanagement of the partnership business by Efron, and the court correctly refused to give a charge upon that subject. Martin Muench was as much the agent of the appellants as of the appellee, and if he erred in judgment in purchasing wool which he thought would be suitable to fill the contract with Bewhall & Thatcher, and it was subsequently sold at a loss, there is no reason why such loss should fall on the appellee exclusively. It was a common venture in which all parties knew that the wool purchased which would not answer for the contract with Bewhall & Thatcher would have to be sold in open market, and they all were bound to bear their proportion of the loss. There was no guaranty by the appellee that wool selected by Muench, and bought at certain prices, would be received by Bewhall & Thatcher, nor that it would be sold at a profit, and in the absence of something of this character, the loss must be borne as in other cases of co-partnership.

The court therefore did not err in refusing to give the third charge requested.

The court instructed the jury that to entitle the plaintiff to recover, the evidence must show loss in the common venture, and the evidence showed that the identical wool bought was shipped to Boston and there sold at a loss. This was shown in the way that such transactions are usually shown. It was shown that the wool was shipped to the commission merchant, that it was sold, what it sold for, what it cost, and the necessary charges thereon.

The fourth and fifth charges asked would have required a particularity and detail in the evidence, which, in such transactions, it would in many cases be impracticable to make; hence the court did not err in refusing to give them. The proof made in regard to the matters referred to in these charges is that which the nature of the transaction would ordinarily call for, and if unrebutted was sufficient.

If that minute inquiry contemplated by these charges was deemed proper by the appellants, they could have made it, but to have required the jury to find against the plaintiff, unless he had made proof of such minute facts as the charges requested by the appellants required, when the proof which he had offered was sufficient, if unrebutted, would have been to mislead the jury as to the character of evidence necessary to entitle the plaintiff to recover.

If there had been any evidence throwing suspicion on the transactions between Efron and Bewhall & Thatcher, or tending to raise doubt as to the wool actually received and sold by the latter, then the rule might be different; but there was no such evidence.

Deducting from the sum paid by Efron to Bewhall & Thatcher the sum received as profit on other transactions and the sum received as rebate on freight, and charging the appellants with only half of the sum which they drew from Efron for purposes not connected with the joint venture, and the verdict of the jury was authorized by the evidence.

It is unnecessary to consider whether the appellee would not have been entitled to the entire sum drawn from him, by appellants, for a matter not connected with the business in which they were jointly concerned. The court did not err in assuming in the charge that there was no controversy between the parties as to the contract under which they were doing business; for that was made by letters which were in evidence, without objection. The appellee remitted a part of the judgment rendered in his favor, as he states, on the ground that the court had ruled that he was not entitled to the interest given him by the verdict, which was authorized by the charge of the court, and he assigns this as error, and asks this court to set aside his remittitur.

This was his voluntary act, which this court would not undo, even if it appeared that the remittitur was entered to avoid the granting of a new trial. It appears from the record, however, that the motion for new trial was overruled on January 17, and that the remittitur was not filed until February 11, succeeding.

There is no error in the judgment, and it will be affirmed, subject to the remittitur filed by the appellee. It is so ordered.

Affirmed.

[Opinion delivered April 16, 1886.]