70 P. 23 | Cal. | 1902
This is an appeal by plaintiff from a judgment in favor of defendants.
It is averred in the complaint that prior to and on July 10, 1896, plaintiff and the defendant H.B. Arnold were copartners carrying on a retail grocery business, and as copartners were owners of a stock of goods and groceries of a named value, and also, as such copartners, were owners of certain described pieces of real property, and also of certain shares in certain loan associations; that on said July 10th plaintiff was sick, and for the purpose of enabling the defendant H.B. Arnold to alone freely handle said business and property without the active concurrence of plaintiff, and for the use and benefit of the copartnership, plaintiff assigned, transferred, and conveyed by good and sufficient conveyances all of his interest in said business and property to said defendant. It is further averred that afterwards said defendant formed a corporation and turned over to it all the assets of said copartnership; and that prior to the commencement of this action said H.B. Arnold and said corporation, which is also made a defendant, refused, and still refuse, to recognize any interest of plaintiff in said business and property, and refuse to allow him to participate in the business, or to account, etc. The prayer is for a dissolution of the alleged partnership, and that the property and assets thereof, after *294 the payment of the partnership debts, be divided between the parties according to their respective rights.
The defendants, by answers, deny all the material averments of the complaint, and particularly deny that there was any partnership as alleged in the complaint on July 10, 1896, or at any time after about June 1, 1896; and that at the last-named date the partnership was dissolved by mutual consent and acts of the parties, and plaintiff then, for good and valuable consideration, assigned, delivered, and conveyed to said defendant H.B. Arnold, for his own use and benefit and not otherwise, all plaintiff's interest in said business and property. The court found the facts in accordance with the defendants' averments and rendered judgment accordingly.
There is no contention that the findings are not supported by the evidence; but the appellant contends that the court erred in sustaining respondents' objection to certain offered oral testimony of plaintiff, on the ground that its only purpose was to vary and defeat certain written instruments; and whether or not this ruling was correct is substantially the only question in the case.
When plaintiff was on the witness-stand, and was about to testify as to the transfers and conveyances referred to in the complaint, he was asked if they were in writing; and having answered that they were, defendants demanded the writings as the best evidence; whereupon plaintiff introduced in evidence the following written contract, which, instead of attempting to state its substance, we will give in full: —
"Witnesseth, That, whereas, the said parties were heretofore copartners in the business conducted under the firm name and style of Arnold Brothers, grocers, at the corner of Valencia and Twenty-first streets in the city and county of San Francisco, state of California; which partnership was dissolved and determined on the said first day of June; and whereas, many debts, due and owing to said arties on account *295 of their said copartnership are still outstanding and debts due by the said firm are yet unpaid; and whereas, it is agreed that the said first party shall assign and release to the said second party all his interest in the stock in trade, goods, wares, and merchandise of every description, kind, and character belonging to the said firm, and in the debt now owing to said firm, and that the said second party shall assume all the debts and liabilities of the said firm, and shall discharge and indemnify said first party from all liabilities and losses arising from said partnership: Now, therefore, in pursuance of the said agreement, and in consideration of the return to said first party of certain papers evidence of debts due from him to said second party — the receipt of which papers is hereby acknowledged — and the payment of one hundred dollars, the receipt of which is hereby acknowledged, the said W.J. Arnold doth hereby fully and absolutely sell, assign, release, and set over to the said H.B. Arnold all his right, title, interest, and share in and to all stock in trade, goods, wares, and merchandise, fixtures and leaseholds, property and effects belonging to said firm or partnership, of whatever nature and wheresoever situated, including books, book accounts, and debts of any nature due the said partnership either upon book account, bond, bill, or note.
"It is further mutually agreed that said second party shall have all the benefit of the good will of said copartnership business and may continue to use the name of said first party in any way necessary to secure debts due said firm by suit at law or otherwise and upon the signs and billheads and business papers; and that said first party may, if he so desire, assist said second party in the future conduct of said business — and said second party agrees to pay said first party the monthly wage or sum of one hundred dollars for such assistance.
"In witness whereof, we have hereunto set our hands and seals this the first day of June, eighteen hundred and ninety-six.
"W.J. ARNOLD, "H.B. ARNOLD."
He also introduced in evidence two deeds, dated in the July following, by which plaintiff specifically conveyed to said defendant all plaintiff's interest in the real property belonging *296 to said copartnership, and also admitted that the deeds were made in furtherance of said contract.
After these instruments had been introduced in evidence, plaintiff was asked: "Now, state what, if any, was the consideration of these conveyances." To this question defendants objected as aforesaid. The court asked counsel for plaintiff what he expected to prove by the witness, and he replied that he expected to prove that "there was in fact no consideration whatever behind any of the conveyances or the transfer." The court sustained the objection.
The ruling of the court sustaining the objection was right. The contract was a written contract, made by and between both the parties, in which there were mutual interdependent covenants; and the offer of plaintiff by oral testimony to vary and entirely defeat the written contract was entirely within the rule that such a contract cannot be thus varied and overcome. No fraud, no undue influence, no mistake was averred or sought to be proved; but more than two years after the execution of the contract and deeds it was sought to fundamentally vary it by parol evidence, and to change it, by oral testimony, into something entirely different from what it clearly and expressly is on its face. This attempt is sought to be justified on the ground of the confidential relations of partners, and on the proposition that the real consideration of a deed or contract can usually be shown. As to the confidential relation of partners, the general rule is, that it exists only as to the current business of the partnership, and that when they come to contract with each other for a dissolution of the partnership they stand at arm's length. It may be conceded that this rule is subject to the qualification that in negotiations for a dissolution each partner must deal fairly with his copartners, and not conceal from them important matters within his own knowledge touching the business and property of the partnership; but in the case at bar there is no averment or pretense of such unfairness or of any suppression of knowledge by defendant.
As to the subject of consideration, the law is, that while the recitals of consideration in written instruments are not conclusive as to the amount or character or payment of the consideration, when these latter matters are the subject of litigation, evidence of want of consideration, or of a *297
different consideration, is not admissible for the purpose of varying, contradicting, and defeating covenants by which rights are expressly vested. This rule is well expressed in the opinion of the court in Hendrick v. Crowley,
The judgment appealed from is affirmed.
Henshaw, J., and Temple, J., concurred.