Calderwood v. Robertson

BLAND, P. J. (after stating the facts). — 1. Plaintiff assigned as error the action of the court in setting aside its judgment affirming the judgment of the justice. The justice’s judgment was affirmed on the assumption that defendant had failed for two terms of court to give notice of the appeal as the law directs. The motion to set aside alleged that notice of the appeal had been timely served on Mr. Yonge, attorney for the plaintiff. Whether or not the notice had been given was an issuable fact. The court heard the evidence offered by both parties and found that notice of the appeal had in fact been given. This finding is not reviewable here, as the evidence of Mr. Porter, defendant’s attorney, was direct and unqualified that he served the notice on Mr. Yonge, plaintiff’s attorney, who was equally positive that notice was not served on him. In this state of the evidence it was for the trial court to determine which of the opposing attorneys’ testimony should be given greater credit, and its action in giving the greater credit to> the evidence of Mr. Porter is not the subject of review here. 2. The theory of the defendant, evidently adopted by the court, .was that plaintiff and defendant are partners; that the goods sued for are partnership property and as there has been no settlement or adjustment of the partnership affairs, plaintiff cannot maintain his suit. While plaintiff and defendant were copartners in the rooming house business, plaintiff’s evidence shows that the business of the partnership had practically ceased; it also shows that as between themselves, plaintiff and defendant were not partners in the ownership of the furniture, which was bought wholly with plaintiff’s money, for plaintiff testified that it was expressly agreed between him and defendant that they should not be partners in the furniture but that it [108] should remain his individual property. This evidence was not denied and we think it made out a prima facie case that should have been submitted to the jury. The judgment is therefore reversed and the cause remanded. All concur.