Wade v. Harvey

Court of Appeals of Kentucky

Wade v. Harvey

3 Ky. Op. 120, 1869 Ky. LEXIS 308

DecidedApril 22, 1869

StatusPublished

This text of 3 Ky. Op. 120 (Wade v. Harvey) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wade v. Harvey, 3 Ky. Op. 120, 1869 Ky. LEXIS 308 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Peters:

We regard the day as stated in. the record on which the motion for a new trial was made, as a mistake in the clerk, nor do we deem it necessary that a party should formally except to the opinion of the court in over-ruling a motion for a new trial.. But on the merits of the case there is more difficulty. One of the witnesses proves that money was advanced in the comencement of the business by’ appellant to became a partner, and although the anticipated permit was not obtained still he did not 'withdraw that money. And it seems that he after the first advancement of money loaned them money in New York. And although the brother who was examined as a witness says the money was loaned, yet he says he never heard appellant disclaim being a partner, meaning doubtless, that after the agreement had been made that he should be made a partner, although the permit was not obtained, the agreement still existed. It is often a matter of difficulty to prove that a man is a dormant partner, some motive operates to induce all parties concerned, to conceal the name, and of course it is rendered thereby difficult frequently to find evidence of the fact.

From all that was proved in this case we cannot say that the finding of the jury was so palpably against the evidence as to authorize this court to interpose and order a new trial, after it was refused by the circuit judge. And as no instructions appear to [121]*121have been given, and no other errors complained of the judgment must be affirmed.

W. B. Clarke, John M. Harlan, for appellant. Craddock & Trabue, for appellee.

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Opinion of the Court by

Judge Peters:

We regard the day as stated in. the record on which the motion for a new trial was made, as a mistake in the clerk, nor do we deem it necessary that a party should formally except to the opinion of the court in over-ruling a motion for a new trial.. But on the merits of the case there is more difficulty. One of the witnesses proves that money was advanced in the comencement of the business by’ appellant to became a partner, and although the anticipated permit was not obtained still he did not 'withdraw that money. And it seems that he after the first advancement of money loaned them money in New York. And although the brother who was examined as a witness says the money was loaned, yet he says he never heard appellant disclaim being a partner, meaning doubtless, that after the agreement had been made that he should be made a partner, although the permit was not obtained, the agreement still existed. It is often a matter of difficulty to prove that a man is a dormant partner, some motive operates to induce all parties concerned, to conceal the name, and of course it is rendered thereby difficult frequently to find evidence of the fact.

From all that was proved in this case we cannot say that the finding of the jury was so palpably against the evidence as to authorize this court to interpose and order a new trial, after it was refused by the circuit judge. And as no instructions appear to [121]*121have been given, and no other errors complained of the judgment must be affirmed.

W. B. Clarke, John M. Harlan, for appellant. Craddock & Trabue, for appellee.

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Bluebook (online)

3 Ky. Op. 120, 1869 Ky. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wade-v-harvey-kyctapp-1869.