Blood v. Fairbanks

48 Cal. 171 | Cal. | 1874

By the Court, Niles, J.:

In the former opinion rendered in this case, we said: “ Though it is alleged in the complaint that Fairbanks succeeded in effecting a purchase of the interest of Hewitt, through the false representation made to the latter that Blood had already sold, yet, as Hewitt does not appear to complain of the fraud, the sale of his interest to Fairbanks was valid to operate a dissolution of the copartnership, which, it is conceded, had theretofore existed between Blood and Hewitt under their contract with Fairbanks; and the latter having taken possession of the subject-matter of the" copartnership, the remedy of Blood is in equity and for an accounting, as in other casés in which an existing copartnership is terminated by the sale of all the interest of one of the copartners in the assets of the firm; and in such a proceeding Hewitt would be a necessary party.”

We adhere to the views then expressed; but, as some facts are averred in the complaint which would entitle the plaintiff to some measure of equitable relief in the nature of an accounting—provided all necessary parties were before the Court—we think the cause should be remanded for a new trial, and that plaintiff have leave to amend his complaint.

Judgment reversed, and cause remanded for a new trial. Remittitur forthwith.