McCormick v. Largey

Symes, J. This was an action brought by plaintiff against the defendant, for one-half the profits arising from the fulfilling of a contract for supplying forage to the government. The complaint alleged that defendant Largey entered into a contract with N. S. Constable, United States quartermaster, [161] to deliver several thousand pounds of oats and hay to the military posts of forts Shaw and Ellis ; that plaintiff became jointly interested with him in said contract, and that the profits arising from said contract were $11,687.40, and demanded judgment for half that amount. Largey, only, appeared and answered, and denied that plaintiff was jointly interested with him in the contract, and admitted that he had agreed, on condition that plaintiff would procure and execute the necessary bond to the United States quartermaster, for the faithful performance of the contract, and devote time and attention to buying grain, and furnish some of the money to purchase same, he might become jointly interested with him, and alleged that plaintiff did not furnish the bond or perform said conditions, and denied his right to any interest in the profits. The case was tried at the March term, 1869, and a verdict found for plaintiff for the sum of $5,843.75, and the jury specially found that plaintiff and defendant Largey entered into a copartnership to fulfill the contract Largey had made to supply the government with forage, and that said plaintiff and defendant Largey sublet said contract to defendants, Kirkendale and McAdow, to be by them performed. The errors assigned are: 1. That'the court erred in not disregarding that portion of the verdict which found $5,843,75 for plaintiff, and ordering an account to be taken of the partnership dealings. 2. That the court erred in suppressing depositions offered in evidence by defendants. The amount of profits alleged by plaintiff to have resulted from the joint or copartnership transaction was not denied in the answer. The only issue raised by the pleadings was, whether or not plaintiff and defendant Largey were jointly interested in the contract, and plaintiff entitled to one-half the profits arising therefrom. The jury found specially for the plaintiff on this issue, and found, further, in accordance with allegations of complaint, that as partners, they sublet the contract; and, in the general verdict, found for the plaintiff half the amount alleged in the complaint to have arisen from the joint transaction. The plaintiff did not ask [162] for an accounting, but alleged a single transaction to have taken place between him and defendant; that the same was entirely closed; that the profits arising therefrom amounted to $11,687.50, and ask judgment for $5,843.75, his share under the partnership. Sections 182 and 183 of the Civil Code provides when a reference may be ordered, but in no case is it mandatory that there shall be a reference. There was no occasion for a reference in this case; there were no partnership or other accounts to be examined; there was no dispute as to the amount of profits arising from the fulfilling of the contract. The jury, after finding specially that the parties were jointly interested, found, in their general ver diet for the plaintiff, half the amount admitted to have arisen from the joint transaction which had been closed. The court could have rendered judgment for said amount on the special findings of the jury, and pleadings, without the general verdict, the amount not being denied in the answer. Fox v. Fox, 25 Cal. 587. The certificate attached to the deposition of S. A. Willey is not sufficient; it does not state that the witness was sworn before giving his evidence, nor that it was read to the witness or corrected by him, and the deposition was taken out of this Territory in the State of Yermont, by a notary public, which officer could not take depositions out of this Territory to be used therein; and, if empowered, there is no certificate attached that he was a notary public, duly commissioned and qualified to act as such. Civil Code, §§ 404, 405, 408. In the bill of exceptions, excepting to the suppressing of the depositions of Rice & Wild, there is no certificate of the officer attached. The clerk puts a note in the transcript, saying “herefollows the proper certificate,” but the court, from this, cannot say that there was a proper certificate, and will presume, in favor of the court below, that there was not. The bill of exceptions, to suppressing the depositions, states that they were objected to because taken in the narrative form, and that the court sustained this objection. We are acquainted with no rule of law which prevents deposi [163] tions being taken in the narrative form. A witness stating all he may know of the matters in issue in a case, in answer to one question, would be as legal as if he told it in answer to many, and better than to allow numerous questions, which, although legal, may tend to inform the witness the answers sought. The court erred in giving this ás a reason for suppressing the depositions, but the error does not affect the judgment from any thing seen in the transcript. Exceptions overruled.