on Folsom street, in San Francisco. At about [ [3] By a ruling of the court defendant was the time of the completion of the building prevented from showing that she never ownone Fred Roy, having made arrangements ed the fixtures put in the restaurant by Baiwith the defendant for a lease of the lower floor of said building, requested Bailey Bros., through James Bailey, to do the necessary carpenter work to fit up that floor for a restaurant. This work was done, and the main question in the case is, Who was to pay for it, the defendant or Roy? ley Bros. She argues that if she did not own the fixtures, or was not to become the owner thereof at the end of the lease to Roy, this is a circumstance tending to show that she did not agree to pay Bailey Bros. for the making and installation of them, and that therefore the rejection of the testimony was Several witnesses introduced by the plain-error. tiff testified that the defendant told the as- The proposed testimony called for an arsignors to proceed with the work for Roy, rangement between the defendant and her and that she would pay for it. Roy, who husband collateral to any of the issues in the subsequently married the defendant, testified case. The husband claimed to own the fixtthat he was to settle for the work with Bai-ures, and he and his wife testified that he ley Bros. Defendant in her testimony said and not she was to pay for them, and under that she told Bailey Bros. that the proposed all the circumstances of the case we believe work was a matter wholly between Bailey that the rejection of this testimony was a Bros. and Roy; that she would have noth-matter too inconsequential to merit serious ing to do with it. Robert Turpin, a witness consideration. called by the defendant, corroborated the testimony given by her and by Roy. A careful examination of the record reveals no error. The judgment and order are therefore affirmed. We concur: LENNON, P. J.; HALL, J. (16 Cal. App. 589) CO. et al. (Civ. 819.) (District Court of Appeal, First District, California. July 15, 1911. Rehearing Denied Aug. 12, 1911.) [1] Defendant's counsel have filed a painstaking brief, and they have made ingenious points indicating that Roy, and not the defendant, is liable for the reasonable value of the work done and materials furnished, but there is a plain conflict in the evidence, and when this is true, as has been said num- JOHN BOLLMAN CO. v. S. BACHMAN & berless times, appellate courts must consider all the evidence in favor of the prevailing party as true, as well as all reasonable inferences deducible therefrom. Woody v. Bennett, 88 Cal. 243, 26 Pac. 117; Meyer v. Gt. Western Ins. Co., 104 Cal. 381, 38 Pac. 82. So considering the testimony here, it abundantly supports the finding of the court that the defendant was to pay for the work. What has just been said applies as well to defendant's contention that the evidence does not sustain the finding of the court as to the reasonable value of the materials furnished and work done. As to these matters, there was a conflict in the evidence, and under the rule the finding cannot be disturbed on appeal. [2] Prior to the commencement of this suit, E. J. Bailey, in his individual capacity, brought an action against the defendant to recover for the same work and labor and materials furnished forming the subject-matter of this suit. In the present action E. J. Bailey having testified that Bailey Bros. did the work and furnished the materials, the defendant sought on cross-examination of the witness to introduce his verified complaint in the former action for the purpose of discrediting and impeaching his present testimony. No error was committed by the trial court in sustaining the objection to this testimony interposed by the plaintiff, for the simple reason that the witness had already in his cross-examination admitted substantially everything sought to be shown by the offered complaint. 1. LIMITATION OF ACTIONS (§ 124*)-ACTIONS AGAINST FIRMS-BRINGING IN NEW DEFENDANTS. that, when two or more persons are associated Under Code Civ. Proc. § 388, providing in any business transacted under a common name, the associates may be sued by such common name, summons being served upon one or property of all, as if all had been named demore of them, the judgment binding the joint fendants and had been sued upon their joint liability, the filing of a complaint against a partnership as sole defendant does not stop the running of limitations upon the cause of action against the partners individually, and an amendment to a complaint against the partnership alone, which brings in the partners, adds new parties defendant. of Actions, Cent. Dig. § 541; Dec. Dig. § 124.*] [Ed. Note.-For other cases, see Limitation 2. APPEAL AND ERROR (§ 864*)-RESERVATION OF GROUNDS OF REVIEW-QUESTIONS Pre SENTED. Where two different judgments were rendered in the same action, a party appealing from only one of them may not have review of matters decided by the other. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 864.*] Appeal from Superior Court, City and County of San Francisco; Geo. A. Sturtevant, Judge. Action by the John Bollman Company against S. Bachman & Co., a partnership, and against S. Bachman and another. From a judgment that plaintiff take nothing as For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes JOHN BOLLMAN CO. v. S. BACHMAN & CO. Houghton & Houghton, for appellant. Heller, Powers & Ehrman, for respondents. 691 HALL, J. Plaintiff on the 4th day of January, 1907, filed a complaint in an action for goods sold and delivered, against "S. Bachmar & Company." It was alleged in the complaint that "the defendant S. Bachman and Company was a copartnership," but no attempt was made in the original complaint to allege who comprised the copartnership. The prayer was for judgment against "the defendant." In other words, the action was brought under section 388, Code Civ. Proc., which provides that persons associated in business and transacting such business under a common name may be sued by such common name. Subsequently, and after the statute of limitations had run against the action, the plaintiff amended its complaint so as to make the title read: "The John Bollman Company, a Corporation, Plaintiff, vs. S. it is true that in most respects a partnership In this contention we cannot agree. While Bachman & Company, a Copartnership, Si- is but a relation with no legal being as dismon Bachman and Arthur Bachman, Copart-tinct from the members who comprise it, yet ners Doing Business Under the Firm Name in many respects. it is treated as a legal enof S. Bachman & Company, Defendants," in- tity both as regards its rights and obligastead of: "The John Bollman Company, a tions. 30 Cyc. 423. Corporation, Plaintiff, vs. S. Bachman & against the last-named defendants, plaintiff | Bachman and Arthur Bachman as parties appeals. Affirmed. that for the first time a cause of action was defendant new parties were brought in, and stated against them, to which they were enThe contention of the appellant, on the other titled to plead the statute of limitations. hand, is that suit brought against a copartnership by the copartnership name only is a suit against all the members of the copartnership, in which the judgment can only be enforced under the section (388, Code Civ. Proc.) as it existed when this action was commenced, against the partnership property; and that consequently an amendment, adding as parties defendant the members of the firm, only enlarges the remedy by authorizing a judgment under which the individual property of the copartners may be taken in execution. this case comes within the rule of Frost v. He thus contends that Witter, 132 Cal. 421, 64 Pac. 705, 84 Am. St. Rep. 53. For the purposes of bringing sult under Company, a Copartnership, Defendant." The section 388, Code Civ. Proc., as it existed amended complaint also contains appropriate when this action was brought, a copartnerallegations to charge Simon Bachman and ship, we think, must be considered to be a Arthur Bachman, and the prayer is for judg-legal entity distinct from its individual memment against "the defendants." The defend- bers. The section at that time read as folants "Simon Bachman and Arthur Bachman, lows: "When two or more persons, associatCopartners Doing Business Under the Firm Name of S. Bachman & Company," filed a demurrer to the amended complaint, pleading the bar of the statute of limitations. This demurrer was sustained without leave to amend. Thereafter plaintiff amended its complaint by eliminating from the title the words "Simon Bachman and Arthur Bachman, Copartners Doing Business Under the Firm Name of S. Bachman & Company." The defendant S. Bachman & Co. filed its answer thereto, and, after trial and verdict rendered, judgment was entered against S. Bachman & Co., a copartnership, on May 7, 1909. Subsequently, on May 17, 1909, a judgment was also entered upon demurrer sustained to the effect that plaintiff take nothing as against S. Bachman and Arthur Bachman. It is from this latter judgment only that any appeal was taken, the notice of appeal explicitly referring to and describing the latter judgment, both by the date of its entry and reciting the substance thereof. The appellant contends that the court erred in sustaining the demurrer and also in entering two different judgments in one action. [1] Both questions are to be determined, we think, by the answer to the question, Did the amendment bring in new defendants? Respondents concede that no new cause of action was stated by the amended complaint, but contend that by the addition of Simon ed in any business, transact such business under a common name, whether it comprise the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been named defendants, and had been sued upon their joint liability." While it is true that the section says the associates may be sued by such common name, the whole section indicates that the action in substance is an action against the associates as such, and not against the individuals. The section recognizes the association, or, as in this case, the copartnership, as a distinct entity, against which the partnership obligation may be enforced. tion brought, as this was, the partnership is the only defendant. In an ac This is the view taken by the court in Daferring to section 388, Code Civ. Proc., the vidson v. Knox, 67 Cal. 143, 7 Pac. 413. court there said: "In an action brought unReder this section it is not necessary to name all of the associates as defendants. the association designated by its common In fact, name is the only defendant, and the judgment authorized is one binding only the joint property of the association.” guage is obiter, and the case is not authoriWhile this lan tatively binding, it is persuasive as expressing the views of the court as to the effect of the section. Where similar statutes exist, it has been held that a suit against a copartnership by its common name is not a suit against the individuals comprising the copartnership, and that under such statutes the copartnership is regarded as a legal entity distinct from its members. Hallowell v. McLaughlin Bros. (Iowa) 121 N. W. 1039; Brumwell v. Stebbins, 83 Iowa, 425, 49 N. W. 1020; Ruthven v. Beckwith, 84 Iowa, 715, 45 N. W. 1073, 51 N. W. 153; Sketchley v. Smith, 78 Iowa, 542, 43 N. W. 524; Baxter v. Rollins, 110 Iowa, 310, 81 N. W. 586; Good v. Red River Valley Co., 12 N. M. 245, 78 Pac. 46. It is true that the statute referred to in the above cases authorized a suit in terms against the copartnership as such, but it further provided for the enforcement of the judgment against the individual property | of any member served with summons. On the contrary, our statute (section 388, Code Civ. Proc.) as it existed when this action was brought provided that the judgment was only binding on the joint property of the associates. Under our statute the action is in substance and effect an action against the association or copartnership as such, and not one against the individual members thereof. This is made manifest by the fact that the judgment can only be enforced against the joint property of all, and that jurisdiction is obtained to render judgment against the copartnership by service of summons on any member thereof. For this reason we think that, when plaintiff amended his complaint by adding as parties defendant the individual members of the copartnership, he brought in new defendants. Certainly he thus, at least, brought in defendants sued in a new and different capacity. As to such defendants the running of the statute was not tolled until the filing of the amended complaint. The court therefore did not err in sustaining the demurrer, nor in entering the judgment appealed from. [2] Appellant in its brief asks that we modify the judgment entered against the copartnership so as to make it a judgment against the member of the firm served with summons in the action. Whether or not the amendment to section 388, Code Civ. Proc., adopted since this action was commenced, authorizes such a judgment, need not be determined. We are precluded from modifying the judgment by the fact that appellant did not appeal from such judgment. As before indicated, he limited his appeal to the judgment entered on the 17th day of May, 1909, and took no appeal from the judgment against the copartnership, which was entered on May 7, 1909. The judgment appealed from is affirmed. We concur: LENNON, P. J.; KERRIGAN, J. (20 Idaho, 153) OSTRANDER v. CITY OF SALMON. (Supreme Court of Idaho. Aug. 22, 1911.) (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS (§ 918*)-BONDS OF QUESTION TO -ISSUANCE-SUBMISSION POPULAR VOTE. Under the provisions of section 2315, Rev. Codes, power is given cities and towns incorpor ated under the laws of this state to issue municipal coupon bonds, and eight different purposes are enumerated for which such bonds may be issued; and an ordinance, as authorized by Rev. Codes, § 2316, providing for the submission of the question of issuing municipal coupon bonds for the purposes enumerated in section 2315, should specify separately the different purposes for which such bonds are to be issued in accordance with the statute, and the voter should be given an opportunity to express his will upon each proposition separately. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1919-1923; Dec. Dig. § 918.*] 2. MUNICIPAL CORPORATIONS (§ 918*)—BONDS OF QUESTION TO -ISSUANCE-SUBMISSION An ordinance which states the purpose of a proposed issue of municipal bonds as follows: "That it is the purpose and intention of the chairman and board of trustees of the village issue such bonds in the total amount of fifty of Salmon City to incur such indebtedness and thousand (50,000) dollars, thirty thousand (30,000) dollars of which amount shall be used for the purchase of the waterworks, water rights, system and franchises of the Salmon City Water Company, Limited, and that an amount not to exceed the sum of fifteen thousand (15,000) dollars of such indebtedness and bonds shall be and water system, and an amount not to exceed used to enlarge and extend the said waterworks the sum of five thousand (5,000) dollars shall be used for the purchase, erection, construction and furnishing of a public building and building site for the use of such village," states two separate and distinct purposes and questions, and the ballot used at the election which requires the voter to designate thereon his vote either for or against the single proposition of favoring or disapproving the issue of the aggregate amount of the bonds proposed does not give the voter an opportunity of expressing his will upon each of the purposes and questions incorporated in the ordinance. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1919-1923; Dec. Dig. § 918.*] 3. MUNICIPAL CORPORATIONS (§ 918*)-BONDS -ISSUANCE-SUBMISSION OF QUESTION TO POPULAR VOTE. Several distinct and independent purposes or propositions may be incorporated in one ordinance submitting the question of issuing munic ipal bonds by a municipal corporation, provid ing such purposes are separately stated, and the voters at the municipal election are given an opportunity to express their will upon each pur pose or question as a separate and independent proposition or question. Corporations, Cent. Dig. §§ 1919-1923; Dec. [Ed. Note. For other cases, see Municipal Dig. § 918.*] 4. MUNICIPAL CORPORATIONS ($ 911*)-BONDS -AUTHORITY TO ISSUE-PURPOSE OF ISSUANCE CONSTRUCTION." Under the provisions of section 2238. subd. 36, Rev. Codes, cities and villages are given full power to "acquire, by purchase or otherwise, waterworks or plants, and illuminating plants, and to supply the municipalities and the inhab For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes itants thereof with water and light, * [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1899-1901; Dec. Dig. 911.*] Appeal from District Court, Lemhi County; James M. Stevens, Judge. Action by Horace E. Ostrander against the City of Salmon. From a judgment for defendant, plaintiff appeals. Reversed, with directions. F. J. Cowen and J. P. Nixon, for appellant. E. W. Whitcomb, for respondent. STEWART, C. J. This action is brought by the appellant against the city of Salmon for the purpose of having determined the validity of a proposed issue of $50,000 of municipal bonds. It appears from the record that on January 3, 1911, the board of trustees of the then village of Salmon City (now City of Salmon) entered upon the proceedings of said board the following order: "The motion was made and seconded that it is the sense of the board to call an election for the purpose of voting bonds to acquire a city water plant and to erect a city hall. Carried." On January 3, 1911, the record further shows that the board of trustees of the village of Salmon City passed a resolution, which, among other things, provided: "A resolution to take the initiatory steps to issue the municipal coupon bonds of the village of Salmon City, to the amount of fifty thousand (50,000) dollars, for the purpose of acquiring by purchase the waterworks, water rights, system and franchises of the Salmon City Water Company, Limited, which is now operated for the purpose of conducting and delivering water and selling the same to the inhabitants of the village of Salmon City; and for the further purpose of extending the said waterworks and system; and for the further purpose of providing for the purchase, erection, construction and furnishing of a public building and building site for the use of the village of Salmon City. "Whereas, the Salmon City Water Company, Limited, a corporation, is the owner of certain waterworks and water rights, whereby water from Jesse creek, county of Lemhi, state of Idaho, is delivered and sold to the village of Salmon City, and the inhabitants thereof, for domestic and other purposes. "Whereas, it would be to the best advantage of the village of Salmon City, and the residents thereof, to have the said waterworks, water rights, system and franchises owned by the municipal corporation of the village of Salmon City. "Whereas, the said waterworks, water rights, system and franchises can be purchased from said Salmon Water Company, Limited, for the sum of thirty thousand (30,000) dollars. "Whereas, the said waterworks and system are becoming insufficient to supply the village of Salmon City and the inhabitants thereof with necessary water, and the said waterworks and system should be extended and enlarged at an approximate cost of fifteen thousand (15,000) dollars. "Whereas, the village of Salmon City does not own a municipal building of sufficient size to accommodate the officers and to take care of property belonging to the said village, and has no lot of land upon which such building could be constructed, and the cost of such site and building would be approximately the sum of five thousand (5,000) dollars: "Now, therefore: Be it resolved, by the chairman and the board of trustees of the village of Salmon City: "That it is deemed advisable by the said chairman and board of trustees to issue municipal coupon bonds of the said village of Salmon City in the sum of fifty thousand (50,000) dollars, such bonds to be issued and sold in the manner provided by law, and the proceeds thereof not to exceed the sum of forty-five thousand (45,000) dollars, to be used for the purchase, enlargement and extension of the waterworks, water rights, system and franchises of the Salmon City Water Company, Limited, and the proceeds thereof in an amount not to exceed the sum of five thousand (5,000) dollars, to be used for the purchase, erection, construction and furnishing of a public building and building site for the use of the village of Salmon City. "Be it further resolved: That an election should be called to be held on the 21st day of February, 1911, for the purpose of enabling the qualified electors of said village to vote upon the proposition of issuing the said municipal coupon bonds in the sum of fifty thousand (50,000) dollars." It further appears that Ordinance No. 98 was passed by the village of Salmon City, which in its terms provides: "An ordinance to submit to the qualified electors of the village of Salmon City, the question of incurring an indebtedness on the part of the said village in the sum of fifty thousand (50,000) dollars, and issuing the municipal coupon bonds of the said village in payment therefor, for the purpose of purchasing the waterworks, water rights and franchises of the Salmon City Water Company, Limited, and for the further purpose of extending and enlarging the same, and for the further purpose of providing for the purchase, erection, construction and furnishing of a public building and site For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes for the use of said village,” etc. This ordi-osition? Section 2315 of the Revised Codes nance, in section 2, specifies the purpose for grants to cities and towns incorporated unwhich the bonds are proposed to be issued, der the laws of this state the power and auas follows: "That it is the purpose and in- thority to issue municipal coupon bonds for tention of the chairman and board of trus- certain municipal purposes, and specifically tees of the village of Salmon City to incur enumerates such purposes, while section 2316 such indebtedness and issue such bonds in of the Revised Codes provides: "Whenever the total amount of fifty thousand (50,000) the common council of such city or the trusdollars, thirty thousand (30,000) dollars of tees of such town or other legislative body of which shall be used for the purchase of the any such city or town, shall deem it advisable waterworks, water rights, system and fran- to issue the coupon bonds of such city or town chises of the Salmon City Water Company, for any of the purposes aforesaid, the mayor Limited, and that an amount not to exceed or common council of such city or the trustthe sum of fifteen thousand (15,000) dollars ees of such town shall provide therefor by of such indebtedness and bonds shall be ordinance, which shall specify the purpose of used to enlarge and extend the said water- issuing such proposed bonds. * * It works and water system, and an amount not will thus be seen by the provisions of the statto exceed the sum of five thousand (5,000) ute the ordinance should specify the purpose dollars shall be used for the purchase, erec- or purposes described in section 2315. By an tion, construction and furnishing of a public examination of section 2315 we find that the building and building site for the use of such purposes for which municipal coupon bonds village." may be issued are divided into eight different subjects. Subdivision 1 provides: "To provide for the construction and maintenance of necessary waterworks and supplying the same with water, and to provide lights for streets, public buildings and grounds." Subdivision 7 provides: "To provide for the purchase, erection, construction, and furnishing of public buildings and building sites for the use of such city or town." Thus the statute designates a proposed issue of municipal bonds for the construction and maintenance of waterworks as a single and separate and distinct purpose for which such bonds are to be issued, and in like manner Notice of the election as provided for in Ordinance No. 98 was duly given and specified the purpose for which it was proposed to issue such bonds, as follows: "For the purpose of voting on the question of issuing the municipal coupon bonds of the village of Salmon City to the amount of fifty thousand (50,000) dollars, to purchase the waterworks, water rights, franchises and other property of the Salmon City Water Company, to extend and improve the same, and to provide for the purchase, erection, construction and furnishing of a building and building site for the use of such village." At such election the following form of designates a proposed issue of bonds for the ballot was used: The vote at such election was in favor of the issuing of said bonds, and the trial court held that the procedure was legal and was in accordance with law, and that the proposed issue of said bonds was in all respects valid and legal. [1] The important and in our opinion the controlling question in this case is, Are the proceedings of the board of trustees of the Village of Salmon City void and in violation of sections 2315 and 2316 of the Revised Codes, in that separate and distinct propositions, or more than one proposition, were submitted to be voted upon as a single proposition, and voted upon at such election as a single prop purchase and construction and furnishing of a public building and building site as a single, distinct, and separate purpose for which municipal bonds may be issued. It is apparent that the council of the village of Salmon City in the resolutions that were passed by it and placed upon its records, and in the language of the ordinance also, perfectly understood the statute, and understood that the proposed issue of municipal bonds embraced at least two distinct purposes, each independent and separate from the other. In the resolution adopted on January 3d, the village trustees specifically referred to the proposed issue of bonds, that the same were for the purpose of acquiring a city water plant and the erection of a city hall, and in the subsequent resolution on the same date the purpose of issuing such bonds for the erection, construction, and furnishing of a public building and building site is designated and distinguished as independent and separate from the purpose of purchasing and constructing waterworks; and in Ordinance No. 98 the language shows that the village council looked upon the purpose for which it was proposed to issue municipal bonds as embracing at least two separate and distinct purposes. and distinguishes separately the proportion of the bonds to be devoted to each of such purposes. |