Clark v. Sidway

Mr. Justice Blatcheord, after stating the case, delivered the opinion of the court. -A motion is made to dismiss the writ of error, on the ground that the judgment against Clark is for only $4000, and that, therefore, this court has no jurisdiction of the case. But we are of opinion that the amount involved is not only the amount of the judgment against Clark, which he seeks to get rid of by this writ of error, but is, in addition, the amount which he claims as a counter-claim against Sidway, and which he would have recovered if his contention had been sustained. The aggregate is over $5000, and we, therefore, have jurisdiction. As to the merits, the case was fairly put to the jury on the disputed question of fact as to whether Clark became a joint purchaser with Sid way of the land in question; and the jury have found against Clark on that question. There was no error in the charge of the court in the particulars excepted to, or in the refusals to charge the matter asked by Clark. The case shows that the jury must have found, and were warranted in finding, that Sid way made the purchase *689 for the joint benefit of himself and Clark; that Clark paid to Sidway $2031.40 toward the purchase-money, which was thp amount thereof over and above the incumbrance which was assumed; that Clark afterwards paid to Sidway $450 on account of expenses, interest and taxes, in carrying the property ; that afterwards Sidway paid the interest on the incumbrance and the taxes, until he had paid more than Clark paid; that the incumbrance matured July 1, 1875; that,' Sidway being an officer of the Illinois Trust and Savings Bank, that bank purchased the Cleaver note and held it as collateral security for Sidway’s personal note for the same amount, with authority to sell such collateral to pay the obligation of Sidway; that, in 1879, the bank sold the collateral, and it was purchased' by Lindgren; that the net result of the sale was credited on Sidway’s note, and the balance of that note was settled by Sidway, as between him and the bank, after this suit was commenced, and Sidway’s individual note was jpaid; that, subsequently to the sale of-the collateral note, and in July, 1879, the original incumbrance was foreclosed by a sale of the land, made by the trustee in the trust deed; that, at the sale the land was bought by Lindgren, and the proceeds were credited on the Cleaver note, leaving a large amount unpaid, and a large obligation resting upon Sidway, growing out of the purchase of the land, one-half of which had been assumed by Clark in the deed to him executed by Sid way. and wife ; that that deed had been recorded by Sidway and forwarded to Clark, who received and kept it; that it contained the before-mentioned assumption by Clark and agreement to pay one-half of the incumbrance, and the interest thereon from August 12, 1872,- and one-half of any further liability which Sidway might be, under in consequence of the provisions of the trust deed; • and that the foregoing matters were all‘consummated more than a year before this suit -was brought. This suit is founded upon the assumption clause in the' deed from Sidway and wife to Clark. The note of Cleave! remained, when the suit was brought, in the ownership of Lindgren ; and the action was, therefore, properly brought in the name of Sidway, for the use of Lindgren. The theory put *690 before the jury by Clark, and not sustained by their verdict, was that he had no connection with the purchase of the land; that the moneys which -he advanced to Sid way were merely loans to the latter; and that the deed from Sid way and wife was only security for such loans. The transaction between Sid way and Clark, of their joint purchase of the land, did not constitute a copartnership ip respect thereto. It was a single, special adventure on joint account, involving the payment in equal proportions of designated sums of money. It was a mere community of interest in the property, and the agreement to share the profits and losses on the sale of the land did not create a partnership. The parties were only tenants in common, and the action ht law would lie. Jordan v. Soule, 79 Maine, 590; Gwinneth v. Thompson, 9 Pick. 31; Haven v. Mehlgarten, 19 Illinois, 91; Fowler v. Fowler, 50 Connecticut, 256; Dickinson v. Williams, 11 Cush. 258; Fisher v. Kinaston, 18 Vermont, 489; Fanning v. Chadwick, 3 Pick. 420; Coles v. Coles, 15 Johns. 159; Galbreath v . Moore, 2 Watts, 89; Harding v. Foxcroft, 6 Maine, 76. The defendant has no right to complain of the action of the court in allowing the plaintiff to remit all of the verdict in excess of' $4000. Probably the court thought that the verdict embraced items which were not properly allowable upder the declaration. There does not appear to be any ground for holding that the remittitur was made with a view to avoid- the jurisdiction of this court. We see no error in the action of the court in regard-to the filling up of the amount in the verdict of the jury, even if the exception thereto can be considered as having been taken in time. We have considered all' the questions properly raised by the defendant, and all'the alleged errors of which he has any right to complain, and see nothing ip the record which would warrant the awarding by us of a new trial. Judgment Affirmed.