
    239 F. 706
    BRENNEMAN, U. S. Marshal, et al. v. FAGERBERG.
    No. 2679.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 5, 1917.
    
      C. F. Wilt, of Tacoma, Wash., and Lyons & Ritchie, of Valdez, Alaska, for plaintiffs in error.
    T. C. West, of San Francisco, Cal., and Donohoe & Dimond, of Valdez, Alaska, for defendant in error.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   ROSS, Circuit Judge

(after stating the facts as above). The record shows that the complaint, in the action in which the attachment that was levied on the property here in controversy was issued, was filed by Carstens Packing Company against J. A. Fagerberg, and contained two counts, the first being based upon a judgment therein alleged to have been recovered by the plaintiff company in February, 1913, in the superior court of King county, state of Washington, against J. A. Fagerberg, for $2,651.72, with interest, no part of which, it was alleged, had been paid, and the second count alleged that between May 10, 1914, and June 12th of the same year the plaintiff sold and delivered to J. A, Fagerberg goods, wares, and merchandise of the agreed value of $4,170.97, no part of which had been paid, and all of which was therein alleged to have been then due and owing to the plaintiff from the defendant J. A. Fagerberg.

We do not find it necessary to decide whether upon such allegations a writ of attachment issued in that action could be legally levied upon property in the actual possession of one not a party to the action, on the theory that he was a partner of the defendant thereto (see Mason v. Eldred et al., 73 U.S. [6 Wall.] 231, 238, 239, 18 L.Ed. 783), for the jury in the present case expressly found that the plaintiff in the present action, H. M. Fagerberg, was not at the time of the levy complained of, and never theretofore had been, a partner of J. A. Fagerberg, the defendant to the action in which the attachment was issued.

The main point contended for on behalf of the plaintiffs in error here is that such finding by the jury was unsupported by the evidence. It is true that the record contains some testimony, and shows some circumstances tending to support the claim that the two Fagerbergs, who, it appears, are brothers, were partners in the business at Blackburn, but there is much testimony disclosed and many circumstances shown by the evidence tending to support the conclusion of the jury that no partnership between them existed. And among the evidence going to sustain that conclusion is some of the testimony of Carstens, the president of Carstens Packing Company and its principal owner, in which he repeatedly stated that as early as 1907 he caused the store at Chititu, which had theretofore been conducted by a corporation called Nizina Trading Company, practically all of the stock of which was owned by himself and one Myers, to be turned over to J. A. Fagerberg, and that he thereafter caused the Carstens Packing Company to furnish him with goods, wares, and merchandise and from time to time also furnished him with money, at all times charging him therewith and looking to him alone for payment. It is undisputed that during much, if not all of, that time the plaintiff in the present case was a clerk in the store so conducted by J. A. Fagerberg, and there was evidence given tending to show, not only that Carstens’ was well aware of that fact, but of the further fact that his salary was in arrears to the extent of several thousand dollars. It further appears that subsequently J. A. Fagerberg transferred all of his property in Alaska to his brother H. M. Fagerberg, but before doing so offered to transfer it to Carstens or his company, which offer was declined.

We are unable to hold that the jury was not justified in finding that the defendant in error here was not a partner of J. A. Fagerberg.

The only other point in the case requiring special mention is the contention that the amount of damages awarded was unsupported by the evidence. As has been said, the jury awarded the plaintiff in the case $4,725, which amount was reduced by the court to $3,000 on the ground of excessiveness, and, the plaintiff consenting to the reduction, judgment was entered in his favor accordingly. An examination of the record satisfies us that the evidence justified the action of the trial court.

The judgment is affirmed.  