Bennett v. Goldenrod Mining Co.

ELLISON, J. — This case like that of Tamblyn v. Scott, —Mo. App. — , was commenced to recover of defendant Scott and defendants Brintlinger and Hodge the amount of an account, the purchases mak- ■ ing up such account being made by Scott. The same contract involved in the Tamblyn case was also in evidence in this ease. But, unlike the Tamblyn case, the plaintiff here obtained a verdict. This the court set aside and granted a new trial on account of supposed error in giving for plaintiff the following instruction. “The court instructs the jury that if you believe from the evidence that defendants were jointly engaged in extracting ore or mineral from the ground on the lots, mentioned in the written contract introduced in evidence, and each defendant was to share in the profit and loss, according to their respective interests therein, then the partnership relations subsist among them, although there is no express agreement to become partners or to share in the profits and losses. ’ ’ The instruction finds direct support in Snyder v. Burnham, 77 Mo. 52, involving, as does this case, a question of mining partnership. "We regard the evidence in the cause as justifying the court in giving the instruction and it was error to grant the new trial on account thereof. But it is argued by defendants that Snyder v. Burnham is not applicable here since in this case there is an express written agreement as to the relation of [320] the partners and that snch agreement does not, of itself, make them partners. Bnt be that as it may, there is nothing in the written agreement to prevent them becoming partners, especially as to third parties. The whole evidence in the case justified the instruction and it was properly given. The rule is that though the trial court errs in granting a new trial for the reason stated by such court, yet, if one or more other causes be set out which justify a new trial, the order granting it will be upheld on appeal. But it will be presumed that the trial court disregarded the other causes assigned and that in so doing it was right, unless the other party shows some of the other causes to be sound, and thus justifies the new trial. [Millar v. Madison Car Co., 130 Mo. 517; Haven v. Railway, 155 Mo. 216.] In the case in hand we find no cause justifying a new trial and the order therefor will be reversed and cause remanded with directions to enter judgment on the verdict. All concur.