
    234 F. 300
    RICHARDS v. AMERICAN BANK OF ALASKA.
    No. 2440.
    Circuit Court of Appeals, Ninth Circuit.
    July 3, 1916.
    Rehearing denied October 16, 1916.
    
      Louis K. Pratt and Thomas A. Marquam, both of Fairbanks, Alaska (Metson, Drew & MacKenzie and E. H. Ryan, all of San Francisco, Cal., of counsel), for plaintiff in error.
    Charles J. Heggerty, of San Francisco, Cal., Thomas McGowan and John A. Clark, both of Fairbanks, Alaska, and Knight & Heggerty, of San Francisco, Cal. (McGowan & Clark, of Fairbanks, Alaska, of counsel), for defendant in error.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

The defendant in error moves to dismiss the writ of error on the ground that the judgment sought to be reviewed is a joint judgment against two copartners, and that the plaintiff in error alone, and without obtaining or petitioning for a severance or giving any notice to his co-defendant, sued out the writ of error. In Masterson v. Herndon, 10 Wall. 416, 19 L.Ed. 953, the court, through Mr. Justice Miller, said: “We do not attach importance to the technical mode of proceeding called summons and severance. We should have held this appeal good if it had appeared in any way by the record that Maverick had been notified in writing to appear, and that he had failed to appear, or, if appearing, had refused to join.”

And the learned justice, referring to the rule that without summons and severance an appeal must be dismissed, declared the reason therefor to be that with such summons and severance the court below would be enabled to execute its decree so far as it could be executed on the party who refused to join in the appeal, and that party would be es-topped from bringing another appeal for the same matter, and said: “The latter point is one to which this court has always attached much importance.”

In the present case both grounds for dismissal have been obviated by the appearance which Williams, the codefendant with the plaintiff in error in the court below, has filed in this court. In that paper Williams states that, even if his codefendant had notified him of his purpose and intention to prosecute a writ of error to review the judgment, with a request that he join him, he would have refused so to join, and he states that he waives and releases any and all errors that may have been committed in the court below during the progress of the trial, and he asks this court to pass upon the merits of the said writ of error without any reference to any supposed rights he may ever have had in connection with the action and the record and proceedings therein. This we think is a sufficient appearance in the case to entitle this court to proceed. In Hill v. Western Electric Co., 214 F. 243, 130 C.C.A. 613, the Circuit Court of Appeals for the Sixth Circuit held that, where the omitted party to the appeal entered his appearance, waived notice of the appeal, and submitted himself to the jurisdiction of the court as fully as though he had been duly and formally cited, and also waived time for filing brief “and other proceedings,” he thereby became a party to all intents and purposes as though originally joined. The motion to dismiss must be denied.

Error is assigned to the following instruction to the jury: “You should consider, therefore, whether or not the defendants Williams and Richards entered into any partnership agreement as alleged by the plaintiff, and whether or not, if you find that they did enter into such agreement, it was contemplated thereby that said Williams should have authority to borrow money for the purposes of such partnership, and whether or not the moneys borrowed by him from the plaintiff were for such purposes.”

The complaint had alleged that Williams and Richards were a mining copartnership, engaged in business in the Iditarod district. The answer denied the allegation. There was no evidence that a partnership agreement was ever entered into. In fact, the evidence was that no such agreement was made. If a partnership existed, it must be inferred from facts and circumstances, from the fact that the money was advanced by Richards to Williams, and it was agreed that Williams was to “go down there” and use his own judgment as to making the purchase. From these facts, and from expressions used by both in the correspondence which followed, it would appear that there was a tacit understanding that they should be jointly interested in a quarter interest in Boulton’s lease. Williams, who was the principal witness for the plaintiff, testified as follows: “Q. Did you have any conversation with Richards at any time after getting this telegram from Boulton, between that and the time you left, that you would go down there and buy a quarter interest, or any interest, with Boulton, and take the assignment of the lease in the name of yourself and Mr. Richards? A. No, sir. Q. Did you have any conversation with him, or did you have any verbal contract, or any written contract, that you would go down there and buy into that lease on Flat Creek, and that he and you would mine there as copartners during the summer of 1911? A. No, sir. Q. Was there anything said between you — now I am talking about down there at Hot Springs and before you left — about any partnership name? A. No; there was not. Q. Was there anything said about you going down there and putting that money he had given you in a bank in the name of the partnership of Richards and Williams? A. No, sir. Q. Was anything said between you about dividing profits and losses of any business down there? A. No, sir. Q. Was there anything said between you about your buying anything with that $2,500, other than a quarter interest in the Boulton lease? A. I can’t say we discussed about buying. I was just given the money and sent down there to use my own judgment.”

The whole of the evidence in the case, and there is no evidence to the contrary, is that there was no thought, either by Richards or Williams, of a general' copartnership. The utmost that can be claimed for the evidence is that their minds met upon a joint venture to purchase, and perhaps to operate as a mining copartnership, a one-fourth interest in the lease then held by Boulton. There was no thought of the possibility of purchasing any other interest than that one-fourth, nor was there any suggestion of giving to Williams power to borrow money. The money which Richards had given him was ample for the purpose they had in view — $2,000 for the purchase of the one-fourth interest; $500 for Williams’ expenses. There was no testimony, and no deducible inference from the evidence, which justified the submission to the jury of the question whether it was contemplated by the agreement that Williams should have authority to borrow money for the purpose of such partnership. The evidence, such as it was, was to the contrary, as witness the language with which Williams notified Richards that he had borrowed the $3,500: “Now, Dick, how I got the money is the hardest part for me to tell. You may be angry, but I didn’t do it with any selfish motive, or try to take advantage of the kindness you did for me.”

If it appeared from a special finding, or otherwise, that the jury’s verdict was based on the ground that Richards subsequently ratified the act of Williams, we might pass over this assignment of error as harmless; but, the verdict being general, we cannot say that the erroneous instruction so given did not affect the result.

The judgment is reversed, and the cause is remanded for a new trial.  