Hixon v. Pixley

By the Court, Hawley, J.: This is an action of trover, brought by plaintiff to recover from defendants, Bobert F. Pixley and Isaac McConnell, as copartners, the sum of twenty-three thousand three hundred and ninety dollars, for the alleged wrongful conversion of certain shares of mining stocks. Defendant McConnell suffered default. Defendant Pixley appeared, and filed an answer denying that at the time of the alleged transactions with plaintiff he was a partner with the defendant McConnell. The plaintiff, in order to sustain this action against Pixley, relied upon two grounds: First. That he was a partner at the time of the alleged conversion. Second. That if not a partner in fact, he suffered himself to be held out to the world as such, and thereby became liable to plaintiff. The jury found a verdict in favor of plaintiff. The-defendant, Pixley, appeals. 1. Appellant claims that the evidence is insufficient upon either branch of the case, to justify the verdict. It appears that the defendants in March, 1875, entered into a copartnership, in Carson City, Nevada, to carry on and conduct the business of stock brokers under the firm name of Pixley & McConnell. This partnership continued until the thirteenth of June, 1877, at which time, according to the testimony of Pixley, it was dissolved. But, according to the testimony of McConnell, this dissolution was a sham; that notice thereof was published in the newspapers to induce Pixley’s creditors to believe that there had been a dissolution in fact, so that they might be prevented from attaching the firm assets. ' Each defendant was equally interested in having his own testimony sustained. Evidence was introduced tending to corroborate the statement of each defendant, and there were facts and circumstances testified to on each side by other witnesses, which were, to some extent, inconsistent rvith the testimony of the respective defendants. — 479 — Upon the testimony, it was exclusively within the province of the jury and the court below to decide the question whether the dissolution was bona fide or not. , There being, in our opinion, a substantial conflict in the evidence, the verdict of the jury will not, 'upon this ground, be disturbed. 2. It is admitted that appellant suffered himself to be held out as a partner after the date of the dissolution, and we are of opinion that plaintiff’s evidence shows that she was induced to deal with McConnell & Co. by reason of her belief that Pixley was a member of the firm. The record shows that, after the date of the publication of the dissolution, the business was conducted by McConnell at the same place, in the name of McConnell & Co.; that plaintiff was aware of the partnership relations existing between Pixley & McConnell, prior to the thirteenth of June, 1877; that she had no actual knowledge of the dissolution; that she never transacted any business with the firm, or either member thereof, until about five months after the publication in the newspapers of the dissolution of copartnership; that in all her transactions the same blanks were used in the business, with the heading printed thereon, “Pixley & McConnell, Stock Brokers,” as were used by the firmbeforethe dateof the dissolution; that all the accounts of the purchases and sales of stock which were rendered plaintiff, show upon their face that the business was conducted by “Pixley & McConnell, Stock Brokers,” and that Pixley had knowledge of the use of said blanks and consented thereto. The evidence is clearly sufficient to sustain the verdict upon this branch of the case. Unless the legal objections urged by appellant’s counsel are well taken, the judgment of the district court must be affirmed. 3. It is claimed that the court erred in modifying the following instructions asked by appellant: “1. If you find from the evidence that the defendant, Ptobert F. Pixley, was not in fact a member of the firm of McConnell & Co. subsequent to the month of June, a. d. 1877, then your verdict must be for the defendant, unless — 480 — you find the said defendant, Robert F. Pixley, failed to give proper notice of his dissolution of copartnership with the defendant Isaac McConnell, and that the plaintiff was misled to her prejudice by such failure. It is admitted that the plaintiff never had any business dealings with the defendants until after the thirteenth day of June, 1877, the time when the defendant, Pixley, claims that the partnership was dissolved, therefore, general publication in the newspapers published in the town where the defendants carried on their business prior to the alleged dissolution, and where the plaintiff resided, would be sufficient notice to the plaintiff of the dissolution.” The court modified this instruction by striking out the words “ to her prejudice,” and by adding at the end thereof: “ Provided, that, knowledge of such notice of dissolution of copartnership came to the actual knowledge of plaintiff.” “2. It is claimed by the plaintiff that the defendant, Pixley, is jointly liable with the defendant, McConnell, to the plaintiff in this action, notwithstanding Pixley may not have been in fact a partner of McConnell in the stock brokerage business after the thirteenth day of J une, A. d. 1877, for the reason that the old signs of Pixley & McConnell remained, and were used, after that time, at the place of business of McConnell & Co., and that the old form used by Pixley & McConnell continued, after the time of the alleged dissolution, to be used by McConnell & Go. “In order to warrant you in holding the defendant liable on this ground you must be satisfied: “ 1. That the old signs and the old forms continued to be so used with the consent of the defendant, Pixley. “2. That the plaintiff was ignorant of the fact of the dissolution, and in determining the question whether she was ignorant or not, you are to take into consideration the fact of the published notices of dissolution, the time and manner of their publication, the x>lace which they occupied in the paper, the greater or less notoriety of the fact of the dissolution, the plaintiff’s intimacy with the family of the defendant, Pixley, at the time of the alleged dissolution; the lapse of time occurring after the alleged dissolution and prior to — 481 — the plaintiff's dealing with McConnell & Co., and all other circumstances showing the manner in which the dissolution was communicated; and if, from all these circumstances, you believe that the fact of the dissolution was likely to come to the knowledge of plaintiff, you may infer that it did so come to her knowledge, if you believe that it did. “3. If you find that the plaintiff, before her dealings with McConnell & Co., had knowledge of the existence of the former partnership between Pixley and McConnell, and that she was actually ignorant of the fact of the dissolution, still you can not hold defendant, Pixley, liable, if you find that he was not a partner in fact after June, 1877, unless you are also satisfied from the evidence that the plaintiff was misled to her prejudice by the use of the old signs and forms in use by McConnell & Co. with the consent of Pixley; that is, unless you find that the plaintiff dealt with McConnell & Co., believing that Pixley was a member of the firm of McConnell & Co., and that she would not have so dealt hut for that belief." The court modified this instruction, by striking out the sentences we have italicized, and by inserting after the word “prejudice” the words “by her former knowledge of the partnership.” "We are of opinion, that the modifications made by the court were not prejudicial to the defendant. The first instruction ought to have been refused. If intended to apply to the first branch of the case, it was erroneous, because it authorized a verdict in defendant’s favor, although the jury might believe that Pixley held himself out to the world as a partner. Had it contained the necessary qualification upon this point, the modification made by’the court would have been erroneous. If intended to apply to the second branch of the case, the modification was correct. The second instruction refers exclusively to the second branch of the case, and, as given to the jury, is correct. If Pixley, after the dissolution, consented that his name should be held out to the world as a partner, all persons, whether new customers or not, having knoweledge of the — 482 — previous copartnership, would be presumed to deal with the firm upon Pixley’s credit as well as upon the credit of McConnell. If the evidence satisfied the jury that plaintiff was aware of the previous copartnership; that she had no knowledge of the dissolution; that she was misled by the acts of Pixley, and induced to deal with the firm of McConnell & Co., upon the faith’ and belief that Pixley Avas a partner, then it was not incumbent upon her to shorv “that she Avould not have so dealt but for that belief.” The most important question, upon which Ave entertain some diversity of opinion, is as to the effect of tho action of the court in striking; out the words: “The lapse of time occurring after the alleged dissolution, and prior to the plaintiff’s dealing with McConnell & Co.” The jury had the right to take into consideration all the circumstances specified in the second subdivision of this instruction, as asked by the defendant’s counsel, in determining whether or not the fact of the dissolution Avas likely to have come to the knowledge of the plaintiff. In some cases “the lapse of time” might, in connection with other circumstances, be very material and important. (Merrit v. Pollys, 16 B. Mon. 357.) I am of opinion, that, although it would have been proper to'have left this clause in, the error of striking it out is not of sufficient gravity to authorize a new trial in this case. I am satisfied that the defendant Avas not prej udiced by the action of the court in striking it out. The controlling questions were as to the fact of the published notices of the dissolution; the greater or less notoriety of the fact of the dissolution, and the plaintiff’s intimacy with th'e family of the defendant, Pixley. In considering these questions the jury would necessarily have to take into consideration the length of time the notices were published, and all the notoriety of the dissolution after it occurred, and prior to the time that plaintiff commenced “dealing Avith McConnell & Co.” The instruction, as given to the jury, fairly presented the laAv, applicable to this branch of the case, in such a manner that the jury could nob have been misled as to their duty. — 483 — 4. The court did not err in giving or refusing certain in structions upon the assumption that the value of the stocks, as alleged in the complaint, was admitted by a failure to deny it in the answer. This court has decided that the allegation of value in an action of trover is a material allegation, and if not denied, need not be proven. (Carlyon v. Lannan, 4 Nev. 156; Blackie v. Cooney, 8 Id. 41.) The complaint alleges that since the “ second day of September, A. d. 1878, and before the commencement of this action; said defendants appropriated and converted to their use said shares of stock. That the value of said shares of stock at the time of said conversion was twenty-three thousand three hundred and ninety dollars.” The evidence shows that the stocks were converted in the month of August, 1878, prior to the time alleged in the complaint, and there was no proof offered as to the value of the stock at that or any other time. The statement of counsel, that appellant, by failing to deny an allegation, that between the second of September, 1878, and the third of March, 1879, the stocks were worth twenty-three thousand three hundred and ninety dollars, does not admit that they were worth that or any other sum in August, 1878, is technically correct. But the law is that the allegations as to the time of the conversion is immaterial, and by the failure to deny the allegations of the complaint, the defendant, Pixley, admitted “that the value of said shares of stock, at the time of said conversion, was twenty-three thousand three hundred and ninety dollars.” 5. There is no error in the modifications made by the court to the second instruction, asked by the defendant, Pixley, relating to the question of notice and demand. The judgment of the district court is affirmed.