The appellants are two out of three creditors who brought separate actions against the appellees and W. Frank Johnson, also known as W.F. Johnson, and Jane Doe Johnson, his wife, alleging them to be partners in the operation of a cement brick manufacturing business. No service of process being obtained upon the Johnsons, the actions were prosecuted against the appellees alone. On stipulation of the parties the three actions were consolidated and the claims of these appellants fixed at $402.94 and $327.10, respectively. After a trial to the court without a jury, the court held that no partnership existed and rendered judgment for the appellees. The appellants jointly appeal from this judgment; the plaintiff in the third action does not join in the appeal.
As evidencing the existence of the alleged partnership the appellants rely upon the testimony given at the trial by the appellee, Vernon H. Sexton. In substance, his testimony was that: he was a general contractor engaged in business in Tucson, Arizona; in January, 1946, he was in need of cement blocks or bricks and agreed to purchase them from Johnson and one Stewart who were commencing a cement brick manufacturing business; in February, 1946, on solicitation of Johnson and Stewart, who were short of funds, he paid a pay roll of their business with the understanding that in return he was to receive cement blocks at current market prices to the extent of his advancement as and when such blocks were manufactured; subsequently, on similar solicitation and with like understanding, until April, 1946, when the business *Page 360 ceased operating, he paid other pay rolls as well as certain bills for materials for the business, and in all, including the pay roll paid in February, 1946, he advanced sums totaling $1200 or $1300 without receiving the cement blocks promised in return for such advancements.
The appellants make a single assignment of error, as follows:
"That the trial court erred in holding that the defendants V.H. Sexton and Lillian Sexton were not members of a copartnership between V.H. Sexton and W.F. Johnson as a matter of law in the light of the evidence, and particularly the defendant's V.H. Sexton's own testimony."
To support the assignment, appellants rely upon this quotation from the decision rendered in Eastlick v. Hayward Lumber Inv. Co., 33 Ariz. 242, 263 P. 936, 938, "that the existence of a partnership depends upon the facts, and whether a partner draws the correct conclusion from them cannot affect its existence in the least." We fail to see the applicability of this correct statement of a legal proposition to the instant situation. Here the trial court doubtless based its judgment upon all the evidence before it, being in no sense bound by any conclusion of appellee Sexton as to whether or not a partnership existed. The trial was before the court without a jury, and the court made no findings of fact. Under such circumstances we must presume that the court ignored immaterial evidence and considered only that which was relevant and competent. We further must presume that the court made all findings necessary to support its judgment. Shannon Copper Co. v. Potter, 13 Ariz. 245, 108 P. 486; Anderson v. Alabam Freight Lines, 64 Ariz. 313, 169 P.2d 865; Warren v. Mosher, 31 Ariz. 33, 250 P. 354, 49 A.L.R. 1311; Blackford v. Neaves, 23 Ariz. 501, 205 P. 587.
Appellants next and finally assert that if repayment of money advanced is contingent upon profits of the business the contract is one of partnership, and as authority for the proposition cite 47 C.J., Partnership, section 99, page 705. Inadvertently or otherwise appellants have incorrectly quoted such authority, the text of which in truth reads:
"* * * To constitute a loan the money advanced must be returnable in any event, and if it is not so repayable and constitutes a personal debt there is no partnership. It is not a loan if repayment is contingent upon the profits, for in such a case it is made not upon the personal responsibility of the borrower, but upon the security of the business; and where the money is so risked in the business, it strongly tends to showthat the contract was one of partnership, and not a mere loan. * * *" (Emphasis supplied)
Since in this case repayment of advances made by the appellee, Vernon H. Sexton, was not contingent upon profits of the business, this proposition too is inapplicable. *Page 361
In view of the disposition which must be made of this case we deem it unnecessary to discuss authorities submitted by the appellees.
After a careful consideration of the record and the evidence we are of the opinion that the facts are such that the trial court could not have held otherwise than that the alleged partnership did not exist.
Accordingly, the judgment of the trial court is affirmed.
UDALL and STANFORD, JJ., and RUSSELL, Superior Judge, concur.
Note: Chief Justice La PRADE being ill and Justice DeCONCINI having disqualified, the Honorable WALTER J. THALHEIMER, Judge of the Superior Court of Maricopa County, and the Honorable H.L. RUSSELL, Judge of the Superior Court of Coconino County, were called to sit in their stead.