[Download] "Cellars v. Dwinnell" by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: Cellars v. Dwinnell
- Author : Supreme Court of Montana
- Release Date : January 28, 1930
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
Description
1. Mines and minerals รข€” Mining partnership differs from general partnership. A "mining partnership" differs from a "general partnership," in the statutory restriction upon the power of one member of a mining partnership to bind the partnership by a written contract, unless expressly authorized by other members. 2. Mines and minerals รข€” Powers of partner in mining concern. The power of a member of a mining partnership being limited, he may not, unless expressly authorized, borrow money for the firm, issue or negotiate commercial paper, or draw or accept bills of exchange on the credit of the firm but a managing partner of a mining partnership has the power to do what is reasonably necessary for carrying on of the firms mining business. 3. Mines and minerals รข€” Mining partners may waive restrictions. Members of a mining partnership can, by agreement, waive statutory restrictions and clothe the partnership with the characteristics of a general partnership. 4. Mines and minerals รข€” Choice of new partners not existing in mining partnership. Under the statute, the right of a partner to exercise his choice as to admission of any new members to the firm and as to persons to be so admitted, if any, does not exist in a strictly mining partnership. 5. Mines and minerals รข€” Mining partnership intended to be general partnership. A written contract entered into by defendants in regard to their mining operations whereby they retained control over admission of new partners and choice of such new partners, if any, indicated an intent that the firm should be regarded as a "general partnership," and not a "mining partnership" in the strict and statutory sense. 6. Appeal and error รข€” Pleadings deemed amended to conform to proof. Where the pleadings alleged that the defendant firm was a mining partnership, but a written contract was admitted in evidence without objection which showed that the defendant firm was a general partnership, and not a mining partnership in the strict and statutory sense, the complaint on appeal would be deemed amended to conform to the proof. 7. Mines and minerals รข€” Mining partner should be liable as a general partner. In an action on notes signed by only one of two members of defendant partnership, where a written contract showing that defendants were members of a general and not a mining partnership was introduced in evidence without objection, the trial court erred in failing to hold the defendant member who did not sign the notes liable as a member of the general partnership, even though pleadings, including complaint, alleged that the defendant firm was a mining partnership. 8. Appeal and error รข€” Notice to dismiss considered as a motion to dismiss. Where respondent filed in Supreme Court a document entitled "Notice to Dismiss Appeal," but thereafter filed no motion in accordance with Supreme Court rule, the Supreme Court, in order to dispose of the motion on merits, would consider the document filed as a motion to dismiss in accordance with the rule. Page 404