Lawlor v. Kemper

Buck, J. The evidence is sufficient, in our opinion, to justify the action of the lower court in adopting the findings of the jury, and making them its own. The sale of the Ground Squirrel lode claim was not essentially foreign to the purposes of the co-partnership, and the evidence as to the general manner in which the business of the firm was conducted and the practical interpretation of their partnership contract by its-members, amply sustain these findings. Lawlor states that, the entry on the partnership books by Kemper: “March 18, ’92. Settled in full to date,” — was made without his consent, or knowledge, and the testimony reasonably supports the conclusion that the settlements of December, 1891, and March,. 1892, between the two partners, only pertained to transac [18] tions other than the sale of the quartz claim. If Kemper, when he entered into the partnership, had desired to hare his quartz claim excepted and treated differently from other real estate and interest therein owned by himself, it was incumbent upon him to have had a clear understanding with Lawlor to that effect. It is apparent from the evidence in the record that, had this lode claim been sold for a much smaller amount of money than it realized, Kemper would have made no objection to crediting the firm with a commission. It is in evidence that, when Lawlor spoke to Kemper about a commission on the sale of this property, the latter replied, “No, sir; that commission is too much, 5 ’ and then he said he would make Lawlor a present. The present that he contemplated,, according to the evidence — which the jury believed — amounted to some $250 only. From a casuistic standpoint, a possession of the ability to discharge a just obligation to a fellow man should encourage the performance of the duty. This case, however, serves to illustrate how easily, through wealth, even when acquired in a sudden and unexpected manner, avarice can be substituted for conscience, and human nature made revolting at the very time when all its higher traits are placed in a position to readily assert themselves. It is objected that evidence as to the sale of this quartz lode was not admissible under the pleadings. We fail to see on what tenable grounds it was not. The complaint clearly states a cause of action, and the issues raised by the answer fully justified the admission of the evidence. Moreover, appellant made no objection to the complaint by demurrer, or to the pleadings by motion, and there was no objection to the admission of such evidence upon a trial/ It is claimed that the lower court erred in overruling an objection to this question propounded to the defendant on cross-examination: “Did you, or not, in that case [a controversy in the United States land office], swear, as a mining expert, that the ground you examined down there was placer ground and not agricultural ground?” Possibly the ultimate object of counsel in putting the in [19] terrogation was to place before the jury an immaterial matter, but it was not incumbent upon the court to anticipate any such motive, and therefore no error was committed in permitting the question. The defendant on direct examination had stated that the reason why he and his partner did not deal in mines was the fact that neither of them were mining experts. Appellant offered in evidence a certain book, claiming that it contained a list of all the property belonging to himself which he had turned in to be handled by the firm. It was not a firm book, and it was conceded that the Ground Squirrel lode claim was not listed in it. The lower court did not err in excluding this book from evidence. Appellant claims that the court gave erroneous instructions. Whether it did or did' not, it is unnecessary for us to determine. This was an action for an accounting — a suit in equity. Although the jury made findings, all findings in such cases are advisory only, and must emanate finally from the judge as a chancellor. He alone is responsible for the same. We agree with the Supreme Court of California that where special issues, in an equity case, are submitted to a jury, the instructions given should not be considered on appeal. See Sweetser v. Dobbins, 65 Cal. 529, 4 Pac. 540; also, Schneiders. Brown, 85 Cal. 205, 24 Pac. 715, and Riley v. Martinelli, 97 Cal. 575, 32 Pac. 579. In an equity case, also, when the trial ■court submits special questions to a jury as to the facts involved, it is only necessary to instruct as to the principles of law applicable to the determination of the particular questions. There is no sound reason for giving instructions covering the whole theory of the law applicable to the facts to be found. Such a practice is supererogatory. The view we entertain as to the questions of error in these instructions also applies to appellant’s objection that one of the attorneys for plaintiff on the trial commented in his argument upon matters not in evidence before the jury. From the bill of exceptions saved, showing that said' counsel for plaintiff did this, it clearly appears that the conduct of said ■counsel in this respect was most reprehensible. It was the [20] .manifest duty of the trial court to have restrained him from making these comments, if possible; It was also the duty of said court to have punished such conduct summarily, if it could not have been prevented, for the contempt was gross and flagrant. But a different question is presented here from what would have been presented had this case been an action at law. It must be presumed that the trial judge, sitting asa chancellor, was in no wise influenced in making the findings of the jury his own by any improper argument of counsel. We are of the opinion that there was no error in the court’s refusal to grant a new trial. Although this appeal also purports to be from a judgment, there is no judgment in the record. Affirmed. Pemberton, C. J., and Hunt, J., concur.