Opinion
Department Two
Appeal from a judgment for the plaintiffs, and an order denying a new trial, in the Twelfth District Court, City and County of San Francisco. Daingerfield, J.
The complaint alleged that the defendants were partners, and doing business under the firm name of Martin & Gorrill, and that they had agreed to purchase certain bricks from the plaintiff, etc.
COUNSEL
There is no proof or finding upon the issue as to whether defendants were partners or not. (Smith v. Moynihan , 44 Cal. 53; Hudson v. Simon , 6 id. 453.)
The Court erred in holding that all the defendants wanted to prove was that the bricks were rejected by the engineer.
H. J. Tilden, for Appellants.
Jarboe & Harrison, for Respondent.
The existence of the partnership was immaterial under the findings.
JUDGES: Sharpstein, J. Morrison, C. J., and Myrick, J., concurred.
OPINION
SHARPSTEIN, Judge
The denial " that the defendants ever were or are now partners" did not raise a material issue upon which it was necessary for the Court to find. It is not denied that they were " doing business under the firm name of Martin & Gorrill, " and it is found that they agreed with the plaintiffs to purchase from them twenty-five thousand bricks, at the price of twelve dollars per thousand. If they entered into that agreement, their liability did not depend upon their being partners.
During the progress of the trial, plaintiffs' counsel remarked, that all the defendants wanted to prove was that the bricks were rejected, which was sustained by the Court, and excepted to by the defendants. We are unable to discover in that any basis for an exception.
The findings respond to all the material issues, and are supported by the evidence, although it is conflicting upon some of the controverted points.
Judgment and order denying a new trial affirmed.