Counsel for defendants, in their petition for a rehearing of this cause, make these points: 1. That this court erroneously upheld the ruling of the trial court in refusing to allow the defendants, on the cross-examination of the plaintiff, to go into the question whether the latter, on a previous occasion, had stated that he loaned the one hundred dollars to Shoo at the time the contract of option was made; 2. That the ruling by the trial court sustaining the plaintiff's objection to the question asked of defendant Shoo: "Mr. Shoo, you were asked about the arrangement with Mr. Doudell, and you testified that he was to have one hundred dollars a month. How much has been paid?" to which ruling we did not specially refer in our original opinion, was erroneous and prejudicial; 3. That the trial court erred in its ruling (to which we did not particularly refer in the former opinion) disallowing the defendant, Shoo, upon being recalled and interrogated with respect to what occurred and *Page 449 what was said in the conversations between him and Doudell at the time of the exclusion of the latter from further participation in the partnership business, to answer the question: "What part did, and what didn't?" 4. That this court erred in sustaining the action of the court below in adopting the report or the findings of the referee, it having been made to appear, so it is claimed, that neither the defendant nor their counsel received notice of the times and places of the hearings conducted by that officer of the court; 5. That "the part of the judgment of the trial court which adjudges that said partnership should exist, at least until said real property should have been paid for, should be reversed, or at least directed to be modified, for the reason that there is no allegation in the amended and supplemental complaint upon which such a finding could be predicated, and the same is wholly outside, and beyond, and not responsive to, any issue made by the pleadings."
1. It may be conceded that the cases cited by counsel appear to sustain the defendants' contention that a witness may properly be required to answer questions tending to show that he had made other statements inconsistent with "his present testimony" without first calling his attention to the "circumstances of times, places and persons present" under which such alleged statements were made. Section 2052 of the Code of Civil Procedure, it is true, merely provides that, before such witness can be impeached by showing that he had previously made inconsistent statements, such circumstances must first be related to him, and while the opinion has prevailed to some extent that that rule was intended as well for the benefit of the witness as for the purpose of laying the ground for impeachment — that is to say, that it required that the witness be put in possession of all the circumstances under which he made the alleged inconsistent statement, so that, his memory being thus refreshed as fully as it could be, he could answer the question honestly and, if necessary, explain such statement — still, as counsel contend, the later expressions of the supreme court upon that proposition appear to coincide with their views as expressed in the petition. But we find, upon further examination of the record, that there is another answer to the criticism of counsel of the ruling under *Page 450 consideration, viz.: That the witness, previously to the ruling complained of, had answered the question as satisfactorily as he appeared to be able to. At folio 378 of the transcript, the following question was propounded to Doudell by the attorney for the defendants and the following answer returned: "Q. You testified other times that you were on the stand that you loaned him (Shoo) a hundred dollars? A. I do not remember;I might have said I loaned it to him. I gave it to him, however." Thus the witness answered that it was possible that he said at the former time referred to that he loaned the money to Shoo, and we can see no reason why he should have been required to repeat an answer to the very same question subsequently propounded to him. Nothing more was done or said to refresh his memory concerning the matter about which he was interrogated when the question was asked the second time than was done or said when it was asked the first time, and it is to be assumed that he would have returned an answer similar to that given the first time the question was asked if he had been asked the same question a dozen or more times under the same circumstances. In any event, where a question is asked and answered in a manner which, as here, indicates that no different answer could probably be given to the same question, the trial court is not bound to have its time consumed by having such question uselessly repeated. In view of the uncertainty of the witness as to whether he had previously said that he had loaned the money to Shoo, we can see no reason why counsel, had they wished to pursue that course, could not have shown, by way of impeachment or rebuttal, precisely what the witness did say respecting that matter (People v. Mar Gin Suie,11 Cal.App. 42, 55, [103 P. 951]; Ehat v. Scheidt,17 Cal.App. 430, 436, [120 P. 49]; Greenleaf on Evidence, 16th ed., sec. 462), but counsel did not appear to be disposed to thus clear up the matter. In no view of the proposition are we able to perceive anything in the action of the trial court in the matter of the ruling here complained of to justify a reversal.
2. The question: "Mr. Shoo, you were asked about the arrangements with Mr. Doudell, and you testified that he was to have one hundred dollars a month, How much has he been paid?" called for testimony which had previously been *Page 451 brought out through the defendant Shoo. At folio 838 of the transcript it will be seen that Shoo was permitted to go into a full explanation of his understanding of the arrangement between himself and the plaintiff and among other things declared that the latter was merely an employee of Shoo and was to receive as compensation the sum of one hundred dollars per month and expenses. "He had at least taken a hundred dollars a month out of that," continued Shoo. "We were both satisfied to leave it in that vague way, and it was left that way." Thus it clearly appears that Shoo testified, in effect, that Doudell received one hundred dollars per month for every month he was actively connected with the business, and the aggregate amount so paid to him, which was all that the interdicted question could have revealed, was easily and readily ascertainable by arithmetical calculation. The ruling was not prejudicial, even if erroneous.
3. The third ground upon which a rehearing is asked involves the ruling of the court refusing to allow the defendant, Shoo, to answer the question, propounded by his attorney, "What part did, and what part didn't?" Shoo had just testified that "some of the matters that Doudell has testified to concerning himself and me occurred and some didn't," whereupon the above stated question was asked. No answer was made to the question, the court having immediately interrupted before an answer was essayed with, "No further questions," to which counsel for the defendants replied, "Well, if the court please, I don't like to leave things in that indefinite way." The court responded: "Well, I have left it that way now. I have given this case all the time I will give it. I have given it a great deal of time."
While it is, of course, the duty of the trial courts, as it is that of all courts, to give to all the cases tried or heard before them all the time they require or that may be necessary to a just and proper decision of all the important questions involved therein, and that the mere fact that a court might in its judgment have given sufficient of its time to a particular case is no excuse or justification for an erroneous ruling, or for refusing to hear further testimony where it is proper in a legal aspect and is designed to illuminate one or all the disputed questions of fact, still we know of no rule of evidence which requires a trial court to allow a large amount of testimony *Page 452 involving, perhaps, various specific topics, to be given in response to an omnibus question such as the one above quoted and as put to the witness Shoo. Doudell had minutely related all the conversations and acts which had occurred between him and Shoo from the time of the commencement of their difficulties or from the time the differences leading to this litigation arose between them. Some of those occurrences Shoo said had occurred and others had not, and if counsel desired to have their client specify or point out in Doudell's testimony those which had occurred and those which did not occur, then they should have questioned him particularly about the several matters to which Doudell had testified, and not have left it entirely to the witness to recall all of the latter's testimony and himself thus point out and separate the correct and the incorrect statements. In other words, counsel should have taken up the alleged incorrect statements of Doudell, separately, if they related to different acts or matters, and have called the attention of Shoo thereto, and have asked him whether they were or were not correct. Besides, it will be seen, by reference to folios 1115 et seq. of the transcript, that Shoo went fully into all the matters pertaining to the differences between the parties, and at folios 1118-1120, it will be observed that he stated several times that "that is all that occurred." Under these circumstances, we cannot see how the defendants could have been damaged in the least by the court's ruling, even if we felt required to hold it to have been erroneous.
4. As to the objection that the trial court committed error by adopting the report of the referee because, neither the defendants nor their counsel were notified of the times and places for conducting the hearings of that officer, it is to be said: 1. That we did not say nor intend to say in the former opinion that the failure of the defendants to object to the report of the referee before the decision was filed had the effect of depriving the defendants of the right to interpose objections to said report after the findings were filed. Of course, they had the right to object to said report as part of the findings of the court, just as they had and have the right to object to any of the other findings. But what we intended to say was that, if neither counsel nor the defendants were given notice of the hearings, they should have *Page 453 called the court's attention to that fact before the findings were made and filed, they having been given ample notice of the filing of the report to have done so, and that the court (although no procedure of this sort is expressly authorized), in the exercise of its discretion, and in the interest of justice, would have doubtless caused the referee to proceedde novo in the matter of his investigations so that the parties could have all been present thereat, if they so desired. As stated in the former opinion, the defendants did not elect to take that course. 2. Upon this point the record discloses this situation: That after the findings were filed, the attorneys for the defendants made a motion to vacate the findings and the report of the referee upon the ground upon which they here urge error in the adoption by the trial court of said report. This motion, was supported by affidavits. The bill of exceptions not only shows that the report of the referee was made up almost entirely from the books and papers of the firm, most of which had already been introduced in evidence, and which had been turned over to the referee by the clerk of the court, but also contains an affidavit by the attorney for the plaintiff in which it is alleged that affiant, on the eighth day of June, 1910, informed Messrs. Carter Carter, the attorneys for the defendants, that the referee was proceeding with the taking of an account as required by the court; that frequently thereafter affiant requested Stanton L. Carter, the senior member of the firm of Carter Carter, attorneys for the defendants, to join with affiant in assisting the referee to make up his account as speedily as possible, "and, in particular, on the ninth day of July, 1910, in open court and in the presence of the Hon. Geo. E. Church, before which this action was pending, stated to said Stanton L. Carter that said referee was engaged in making up said report and then and there requested said Stanton L. Carter to join affiant in helping said referee to complete his report as speedily as possible, to which said Stanton L. Carter replied that he would see about it or words to that effect." It is further alleged in said affidavit that, after the exclusion of plaintiff from the business carried on by him and Shoo, one L. C. Shingle was placed in charge and possession of said business to represent Shoo, and thereafter conducted said business; "that the defendant, Shoo, has not been in the city of Coalinga *Page 454 since the fifteenth day of April, 1910, and has left the entire charge of said business to said L. C. Shingle, and that said Shoo has known nothing with reference to any of the matters which the referee was required, by said order of June 6th, 1910, to report to this court; that said Shingle alone was familiar with all the details of said business and premises from and after the eighth day of February, 1910." This affidavit further alleges that it was not necessary to take any testimony or examine any witnesses other than the plaintiff and said Shingle to enable said referee to make a report as required by the court; that, in addition to the books and papers which were delivered to the referee by the clerk of the court, said Shingle "turned over all the remaining books of account, vouchers, and papers and whatever else was necessary to or proper to enable said referee to make a report in accordance with the aforesaid order of June 6th, 1910"; that said books of account, vouchers, bills, papers, etc., turned over to said referee, were sufficient to enable him, with the assistance of said Shingle and the plaintiff, to make a complete report required by the order of the court, and that from time to time, whenever required by the referee, both the plaintiff and said Shingle appeared before him for the purpose of making such explanations as were required by him with respect to the matters which he was to report to the court; "that the character of the report did not necessitate such a trial as required the testimony of other witnesses."
The statements contained in the foregoing affidavit are not controverted by counsel for the defendants or the defendants themselves. And upon that showing alone the court below was justified in refusing to set aside the findings upon the ground here urged against the report of the referee.
Counsel, however, declare in their petition that the court below found as a fact that "none of the attorneys for said defendants had any notice or knowledge of the taking of any testimony by said referee, or of any hearing before said referee, or of any action taken by the court thereon, and the records of said court do not show that any such notice of any said proceedings was given." Counsel are obviously in error in said statement. The language just quoted and which is also quoted in the petition as, purporting to be an excerpt from the court's findings constitutes a part of the language *Page 455 of the bill of exceptions on the motion to set aside the findings, and said language in said bill is immediately preceded by the language: "Said motion was supported by affidavits showing that," thus clearly indicating it to be merely the statement by the attorneys preparing the said bill of exceptions and not a finding of the court. This is so plainly the fact that we are at a loss to understand how counsel came to treat said language as a finding or as emanating from the court in any form or for any purpose. As a matter of fact, by adopting the report of the referee into its findings, the court found that "both plaintiff and defendantwere advised as to the accounting, but very little information could be obtained from either party and the referee was obliged to rely on the books, papers and records as aforesaid."
Our conclusion upon the point under consideration is that if the defendant, Shoo, or his attorneys were not present when the referee was conducting his investigations it was entirely due to their own negligence. They, therefore, now have no ground upon which to found a just complaint against the judgment of the court because of their alleged absence from said hearings or investigations, and this would still be true even if it could well be maintained that their rights would have been more circumspectly conserved by the presence of Shoo himself or his attorneys than they were by his representative, Shingle, who, at the time the referee was investigating the accounts, and for some time prior to the appointment of said referee, had charge of the business, books of account, and papers concerning which the referee was required to report to the court, and who had actual knowledge of the investigations of the referee as they were being prosecuted.
5. The fifth and last point urged in the petition is that the court erred in finding "that said partnership should exist at least until said real property should have been paid for," the argument being that said finding is not within the issues made by the pleadings. It is true that the allegation in the complaint as to the time during which the alleged partnership was to exist was stricken out and that no language of like import is contained in the complaint upon which the trial was had. But, in our opinion, the finding is immaterial. As shown in the original opinion, where a contract of copartnership has been executed — that is to say, when the parties *Page 456 thereto have actually entered upon the execution of such contract — the partnership will exist and remain such until "something is done to dissolve it." (Sanger v. French, 157 N.Y. 213, [51 N.E. 979].) The principal point in issue in this case was whether there was a copartnership agreement at all, and, if there was, and the partners had entered upon the execution of the terms of said agreement, it seems to us to be of no material importance in this case whether such partnership was to continue for a specified or limited time or indefinitely. Moreover, we are not altogether satisfied with the position which the appellants necessarily assume that, upon an issue whether two or more parties are copartners, engaged in carrying on a partnership business, it is absolutely necessary to allege the period of time during which such copartnership is by the agreement to subsist in order to justify the court in making a finding as to such time, if there is evidence justifying it. However, as stated, we do not think the finding referred to is of any special importance in this case one way or the other.
We have now, as counsel in their petition requested us to do, specially noticed all the points made on this application, and, while the record is amenable to some criticism (and what record made up in the trial of a case is not?), it is evident that we have not thus been convinced that the judgment or order should be disturbed.
The petition for a rehearing is denied.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 24, 1913. *Page 457