
    STOOKEY v. MACKAY.
    No. 2381.
    Decided December 3, 1912
    (128 Pac. 580).
    1. Judgment — Pleadings to Support — Counterclaim—Issues. Tbe complaint alleged tbat plaintiff and defendant were partners, and tbat defendant retained tbe profits, and demanded an accounting. Defendant denied tbe partnership, and set up a counterclaim for money loaned. Tbe court . found tbat no partnership was entered into, but found tbat defendant was indebted to plaintiff for commissions earned in purchasing property for defendant, but made no finding as to tbe counterclaim, and rendered judgment for plaintiff. HelcL, tbat, in tbe absence of cross-appeal or cross-assignment of errors, tbe court, on defendant’s appeal, could not review tbe finding on tbe question of partnership, but tbat finding must stand, so tbat tbe judgment was not sustained by tbe pleadings. (Page 3.)
    2. Appeal and Error — Actions at Law — Findings. Where, in a suit for a firm accounting, defendant denied tbe partnership, and set up a counterclaim for money loaned to plaintiff, tbe counterclaim was an action at law, and tbe trial court must make findings of fact; and tbe Supreme Court, on appeal from a judgment rendered without findings on tbe counterclaim, cannot make findings, but must remand tbe case, witb directions to make findings and render judgment tbereon. (Page 4.)
    Appeal from District Court, Third District; Hon. M. L. 'Ritchie, J udge.
    Action, by S. J. Stookey against W. W. Mackay.
    Judgment for plaintiff. Defendant appeals.
    REVERSED with DIRECTIONS.
    
      
      Steiuart, Stewart & Alexander for appellant.
    
      Smith & McBroom for respondent.
   FRICK, C. J.

Respondent, in Ms complaint, in substance alleged tbat be and appellant were equal partners in a certain transaction involving tbe profits of tbe sale of a large number of sbeep; tbat said sbeep were sold by appellant on partnership' account, and tbat tbe profits derived from said sale were retained by bim; and tbat be refused to account to respondent for tbe same, or any part thereof. Respondent prayed judgment for an accounting of tbe profits, realized by appellant, and for tbe 'amount tbat should be found due bim on such accounting.

Appellant, in bis answer, denied tbe partnership, and, while admitting tbe purchase and sale of a large number of sbeep, averred tbat said sbeep all belonged to bim, and tbat respondent bad no right, title, or interest therein, or in tbe proceeds derived from tbe sale thereof, and denied tbat be was indebted to respondent in any sum or amount whatever. Appellant also set up a counterclaim for money loaned to respondent. Respondent, in bis reply, denied tbe allegations of tbe counterclaim.

Tbe pleadings set. forth tbe facts constituting tbe alleged transaction at great length, but tbe foregoing is sufficient to malm clear tbe points decided.

A trial was bad to tbe court, at which it seemingly, in opposition to tbe contention of counsel for both parties, tried tbe case upon a theory other than tbat upon which the pleadings were based, and at tbe conclusion of the trial found tbat no partnership was entered into or existed between appellant and respondent with respect to tbe purchase and sale of said sbeep. But, notwithstanding tbat finding, tbe court also found tbat appellant was indebted to tbe respondent in tbe sum of $1043.06 as commission earned by bim in purchasing said sheep. Tbe latter finding is apparently upon either an express or implied contract which was not pleaded, was not relied on in tbe trial court by counsel, and is not relied on in this court. Tbe court failed to make any finding, affirmative or negative, on tbe counterclaim interposed by appellant. Conclusions of law and judgment were entered in favor of respondent in accordance with the findings aforesaid, from which this appeal is prosecuted.

Appellant’s counsel contended that the judgment is contrary to and is not supported by the pleadings, and that the court erred in not entering conclusions of law and judgment on the general finding that no partnership existed, and further erred in not making any finding on the counterclaim. Counsel for respondent very frankly stated at the hearing in this court that, in view of the court’s findings upon the question of copartnership1, the judgment cannot prevail. In their brief they say:

“There can be no question but that this case must be remanded, with some directions to the trial court.”

Counsel for appellant insist that respondent’s complaint proceeded upon the theory of a copartnership- consisting of himself and appellant; that the business or transactions of such partnership resulted in profits, which were all retained by appellant, and for one-half of which he should be made to account to respondent as copartner; that the finding of the court, however, was that no copartnership- was ever entered into or existed, and hence there were no partnership transactions, nor partnership profits to account for or distribute. They contend, therefore, that neither the findings of the court, nor the judgment that the appellant was indebted to respondent for commissions, is supported by the pleadings. They further contend that the only finding that is responsive to the issues presented in the pleadings is' the negative findingthat no partnership existed with respect to the transaction set forth in the complaint, and, inasmuch as that finding is supported by competent evidence, and is not assailed by anyone on this appeal, it binds not only the parties to the action, but this court as well. In view of the state of the record', we think the foregoing contention is sound, and should prevail.

The finding of the court that no partnership existed is not assailed by respondent, either by a cross-appeal or by a cross-assignment of errors; hence we are powerless to review the same. If that finding therefore stands, as it must, there is nothing contained in the complaint or in the pleadings upon which to base the judgment entered' in this case, and for that reason the judgment cannot be permitted to stand.

Appellant, however, asks us to go further, and to make or direct findings to be made in his favor on his counterclaim. No doubt appellant is entitled to a finding on his counterclaim, but the question is whether this court or the trial court should make such finding. We are clearly of the opinion that the finding upon the issue presented by the counterclaim in question should he made by the trial court, and not by this court. The cause of action set up in the counterclaim in question is an action at law, pure and simple; and hence this court cannot pass upon the weight or effect that should be given to the evidence produced either in favor of or in opposition thereto. To make findings in law actions tried to the court without the intervention of a jury is the province of the district court as the trier of fact. All we have power to do in law actions is to determine whether there is any substantial evidence in support of the findings or judgment. Should we either enter or direct findings on the counterclaim in this action either way we would have to pass upon the weight or effect to be given to the evidence. To d'o so in a law action would require us to go beyond the power conferred upon us by the Constitution of this state.

Nor can we comply with the request of counsel for respondent and remand this cause for a new trial upon the issue of the existence of a copartnership. As already pointed out, that issue was tried out ,and the trial court found against respondent with respect thereto; and, in view that he neither appeals nor assigns cross-errors assailing the finding, it must prevail. So long, therefore, as that finding stands, respondent is not entitled to share in the profits derived from the transactions set forth in his complaint, and appellant cannot be required to account therefor to him. Appellant therefore is entitled to judgment dismissing the complaint. "Upon the other hand, both parties are entitled to a finding on the counterclaim.

The judgment is therefore reversed, with directions to the district court to malee conclusions of law and enter judgment in favor of appellant on respondent’s cause of action, to hear any further evidence either or both parties may offer, or that the court may direct, on the counterclaim, and to malee findings of fact and! conclusions of law with respect to the counterclaim, and enter judgment in accordance with such findings of fact and conclusions of law. Appellant to recover costs on this appeal.

McCARTY and STBAUP, J.T., concur.  