VAN ATTA v. MONTANA NAT. BANK, 275 F. 548

ROSS, Circuit Judge (after stating the facts as above). The record shows that it was after a very considerable portion of the evidence that it contains had been introduced on the trial that the plaintiff asked and obtained leave to file the amended complaint, thereby basing his action upon the alleged conversion by the defendant of his interest in the notes therein described.

We have no means of knowing what the original complaint contained, but find in the. opinion of the court below the statement that in it “were various allegations of firin property, of partnership property.” At all events the evidence not only tended to sustain the allegations of the answer of the defendant bank, but showed, we think, beyond dispute, that there had been no settlement of the partnership business of Guy and Van Atta in so far as third parties were concerned, of which the defendant bank was one, whatever may have been agreed upon by the partners as between themselves.

Obviously, without a settlement of the partnership business, it could not be known what the interest, of the plaintiff in the notes described in the complaint amounted to, in which adjustment the defendant bank, as holder of the notes for value, was plainly entitled to take part. Clearly, therefore, the trial court was right in holding that the evidence introduced afforded no ground for a finding by the jury of a conversion by the defendant of the plaintiff’s interest in the notes, nor of the value of such interest, dependent, as the latter was, upon the adjustment of the partnership affairs.

The judgment is affirmed.