# Moore v. Huntington

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United States Supreme Court
84 U.S. 417
Moore v. Huntington
APPEAL from the Supreme Court of the Territory of New Mexico.
Mrs. Huntington, widow by a former marriage of Nathan Webb, and administratrix of his estate, brought this, a suit in chancery, against W. H. Moore and W. C. Mitchell, as surviving partners of a firm of which her husband, whose sole heir by the laws of Texas she alleged herself to be, was a member at the time of his death. The object of the bill was to obtain a settlement of the partnership transactions, and she alleged that a large sum was due her on such settlement.
It admitted of no doubt that Moore and Mitchell, who had been doing business at Fort Union, in New Mexico, as post sutlers and general merchants, prior to 1859, in that year took into their partnership the decedent, Webb, who had previously been one of their clerks; and that in the year 1863 they started a business in Southern New Mexico and El Paso, Texas, which was placed under the especial charge of Webb.
It was also agreed that in regard to this latter business Moore, Mitchell, and Webb were equal partners, the interest of Webb being one-third.
In reference to the business at Fort Union the complainant alleged in her bill that her husband, on joining the partnership, put into its capital stock $16,000, and was taken in as an equal partner, and that written articles of agreement to that effect were signed by the parties. The defendants, Moore and Mitchell, who were required to answer under oath, did so, and while admitting the partnership, denied that Webb put in any capital, and averred that he was taken in for his business qualities. They denied that any articles of agreement were made or signed in writing, and they denied that his interest was one-third, and alleged that it was to be one-eighth.
As the transactions of the Fort Union branch of the concern were much the largest, and as nearly all the profits claimed by the complainant were made here, the difference was important.
The defendants denied also that the complainant was sole heir of their late partner, and asserted, contrariwise, that he had left, surviving him, his mother, who had an interest in his estate, and was a proper and necessary party, without whom the cause could not proceed.
The defendants filed a cross-bill against the complainant, which she answered.
No written articles of partnership as to the Fort Union business were produced or shown to have been made. One Shoemaker, father of the complainant, and 'very intimate with Moore,' testified in 1870 that in 1862 Moore had told him, 'as near as the witness could recollect,' that 'all the partners were jointly interested in the business of the firm. He never stated that the interests of the members were equal; neither did he ever state that they were not equal until a year and a half after Webb's death; and I never, until that time, heard anything to raise a doubt of Webb's equal interest.' Houghton, a brother-in-law of Webb, stated that he 'had frequently heard Webb say, and at various times and places, that he was a full and equal partner in both concerns, and in all the various branches and ventures of the firm at Fort Union. On one occasion he referred to the equality of their interests in the counting-room of the sutlers' fort.' 'To the best of my recollection,' said the witness, 'W. H. Moore was in the room. He took no part in the conversation, and I am not aware whether he heard what was said or not.' For the rest, the evidence as to the extent of Webb's interest in the firm at Fort Union, rested chiefly on the bill and answers.
The case being referred to a master, he held that the interest of Webb was one-third, and on this basis reported $97,596.19 due by the defendants; charging the defendants in such a way that, as his report seemed to indicate, they were charged as to come items twice for the same thing; charging them with property at the value which it had at the date of the decedent's death, and charging them with real estate the title to which was still in the decedent.
Sixteen exceptions to this report were filed by the defendants. Certain particulars of the report, and exceptions to them respectively, which were taken, are stated further on, in the opinion of this court in passing on them. They are, therefore, not more fully given here.
The Supreme Court of New Mexico, to which the case was taken on appeal from the District Court of the Territory, where it originated, reduced, 'for errors apparent on the record'-though for what errors did not anywhere appear, nor on account of which of the sixteen exceptions filed-the sum found by the master to $72,920.75, and 'in all other respects' affirmed it, and for the amount of $72,920.75; including in its affirmance, of course, the fundamental part by which the master assumed that Webb's interest in the Fort Union firm was one-third. In giving its decree of affirmance the Supreme Court adjudged that the complainant (appellee in the case before it) should have judgment against the securities in the bond for an appeal to that court, for the amount of the judgment, interest, and costs. The cross-bill was not in any manner referred to, and remained undisposed of.
The defendants now appealed to this court, assigning very numerous errors, and among them—
A disregard of the proofs in the matter of Webb's interest in the Fort Union firm; the fundamental matter of the suit.
A want of necessary parties, in the omission of the mother as one.
Decreeing finally upon the complainant's bill and the respondents' answers, without disposing at the same time of the issues raised upon the cross-bill.
Making a decree against the sureties in the appeal bond.
Double charges in the master's report.
Charges on wrong principles, as ex. gr. (a) of the estate at its value at the date of the decedent's death; (b) of real estate over whose title the surviving partners had no control.
Messrs. John S. Watts, W. M. Evarts, and J. W. Noble, for the appellants; Messrs. W. W. McFarland and S. B. Elkins, contra.
Mr. Justice MILLER delivered the opinion of the court.

## Notes

* The compiled laws of New Mexico (page 290, § 5) enact that
'In case of appeal in civil suits, if the judgment of the appellate court be against the appellant, it shall be rendered against him and his securities on the appeal bond.'
This section of the act of the Territory of New Mexico was founded, according to the allegation of the appellant's counsel, on what is known as the Kearney Code; an enactment made by General Kearney, September 22d, 1846, four years prior to the organization of the Territory of New Mexico, under the act of Congress of 9th September, 1850 (9 Stat. at Large, 446). And when the act was passed, it was applicable, as the said counsel conceived, only to the courts of justices of the peace and probate courts existing and doing business at the time as courts. They conceded, however, that in 'The Beal Case,' then just decided by the Supreme Court of New Mexico, it was held that—
'A statute authorizing judgment against the securities on appeal bond, as well as against the appellants in case of affirmance, is not unconstitutional.'
'The correctness of this ruling,' they added, 'where a statute is in existence so providing, it is not worth while to discuss as a general proposition.'
The Reporter did not understand whether the Supreme Court of New Mexico regarded that the statute was in existence or not.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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