Frederick Equity Exchange v. Smith

196 N.W. 297, 47 S.D. 137, 1923 S.D. LEXIS 129

Opinion

GATE'S, J.

This is an action to' recover the value of goods, wares and merchandise sold by plaintiff to defendants as partners. The defendant Smith had departed from the state and was not served with process. The defendant Cantwell denied the partnership and alleged that the mlerchandi'Se sold was sold to Smith on his individual account in his threshing business in which Cantwell was not interested. The court found for the plaintiff. From the judgment and order denying new trial, defendant Cantwell appeals.

It would serve no useful purpose-to state the facts, because no legal principle is involved. The question is solely one of fact. We cannot say from :a careful examination of the evidence as disclosed1 in the briefs, and especially from the added facts brought out .in respondent's brief, that the clear preponderance of the evidence was contrary to- the findings of the trial court. Among the facts that warranted the court in finding that there was a partnership was the fact that defendants were members of respondent under the name of Smith & Cantwell, and among the items of evidence warranting the finding for respondent there was testimony tending to show that appellant knew that the items of the account were charged to the firm and that he made no complaint thereof until after Smith- -had met with financial reverses and had given a bill of sale of his partnership interest to appellant.

The judgment and order appealed from are affirmed.

Note. — Reported in 196 N. W. 297. See, Headnote (1), American Key-Numbered Digest, Appeal and error, Key-No. 1012(1), 4 C. J. Sec. 2857; (2) Partnership, Key-No. 55, 30 Cyc. 415.