248 P. 706 | Cal. Ct. App. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *462 This is an action on a promissory note, alleged to have been made and delivered to the plaintiff by the defendant and "Tingley Elmore." Certain payments were made upon the note which reduced the principal sum claimed to be due thereon at the time of the institution of the action to the sum of $600, for which sum, with interest, judgment was prayed.
The plaintiff and the defendant, for a number of years prior to the making of the note in suit, were engaged as partners in a mercantile business in Los Molinos, Tehama County. On March 12, 1921, the parties executed a written agreement dissolving said partnership. This agreement, it seems, was at least a part of the consideration for the dismissal of a suit or an action brought in the superior court of Tehama County by Tingley against the plaintiff herein and certain other parties. The nature or the specific object of said suit or action is not explained by this record. However, the agreement referred to provided for the dissolution of the copartnership relation between the plaintiff and the defendant in the prosecution of the mercantile business adverted to above, and further provided: That defendant "has bought from W.W. Elmore . . ." the said mercantile business, together with the store building in Los Molinos in which said business was conducted, the lot on which said building stood, and all the merchandise, book accounts, goodwill, and all other assets pertaining to said business; that defendant was to "assume and save the said W.W. Elmore and D.A. Elmore and his wife, from all obligations now owing by the said firm of Tingley Elmore," except a certain account held against the firm by one Buffum; that Elmore was to receive and "has received from said J.M. Tingley and Henrietta Tingley, his wife, a deed" to certain described lots situated in the "L.W. Nelson Tract" and in the town of *463 Anderson, Shasta County, said lots being at the time of the dissolution owned by the firm of Tingley Elmore; that the defendant "has paid to the said W.W. Elmore and D.A. Elmore, his wife, a certain $2,000.00, now held by Andrew Shafer in compliance with that certain memorandum executed on the 27th day of January, 1920, the receipt of which is hereby acknowledged, and has executed to the said W.W. Elmore and D.A. Elmore, his wife, a second mortgage for one thousand dollars on the property now held by Mrs. Tingley in Anderson," describing the same. There are some other stipulations in the agreement which it is not deemed necessary to recite herein.
The complaint, besides pleading the promissory note and alleging payment of certain sums thereon and nonpayment of the balance alleged to be due by reason thereof, sets out said agreement in haec verba, but contains no reference by averment to the agreement, unless the following may be so construed: "That, on the 12th day of March, 1921, the defendant agreed in writing to assume all obligations legally owed by the firm of Tingley and Elmore."
The defendant filed an answer, together with what is designated in his pleading as a "cross-complaint." The answer denies the execution and delivery of the note set forth in the complaint by Tingley to plaintiff, and also denies other of the essential allegations of the complaint.
The so-called cross-complaint alleges the fact that plaintiff and the defendant for many years prior to and up to March 12, 1921, conducted a business as copartners at Los Molinos; that during the existence of such partnership "and on the 29th day of December, 1920," plaintiff became and was indebted to said copartnership in the sum of $1,020.51 "for goods, wares and merchandise, consisting of groceries, dry goods, general merchandise and cash advanced, sold and delivered by the said partners of Tingley Elmore to the said W.W. Elmore," etc. That averment is followed by allegations to the effect that the said partnership existing between the defendant and the plaintiff was, by the written agreement pleaded in the complaint, dissolved on the twelfth day of March, 1921, that by the terms of said agreement all assets, including book accounts, belonging to the said firm, "were sold, assigned and set over to J.M. Tingley, defendant herein," and that "among the accounts thus sold and *464 assigned to the said J.M. Tingley by the said agreement was the account above referred to owing from the said W.W. Elmore to the firm of Tingley Elmore"; that no payment or payments has or have been made by said Elmore (plaintiff) on said account, etc. The agreement is by the so-called cross-complaint annexed to and made a part thereof. A "second cause of cross-complaint" is set up in said pleading upon information and belief and is to the effect that, since the termination of the copartnership theretofore existing between said Tingley and the plaintiff, as above explained, the plaintiff "has collected and converted to his own use certain accounts owing to the firm of Tingley Elmore and which were by said agreement sold and assigned to Tingley," particularly the sum of $230.08 owing to said firm by one Mrs. L.E. Little, and which sum, it is alleged, plaintiff has never paid or accounted for to said J.M. Tingley. The prayer is that "the plaintiff take nothing by his action and that he, the said defendant, be given judgment against said W.W. Elmore, plaintiff herein, for the sum of $1,250.59."
No answer was interposed to the so-called cross-complaint, the trial court holding that the "pleading" filed in connection with the answer involved counterclaims and that, consequently, no answer was necessary, a proper ruling if the premise is correct.
Judgment passed for the plaintiff for the amount sued for and the defendant appeals upon a record prepared in accord with section 953a of the Code of Civil Procedure.
[1] When the case was called for trial, and before the taking of testimony was begun, defendant moved for judgment on the pleadings, basing the motion on the ground that both the complaint and the answer showed that the obligation evidenced by the note declared upon grew out of and constituted a partnership transaction, and that an action cannot be maintained by one partner against another involving the partnership affairs in the absence of allegations in the complaint showing that there has been an accounting and settlement of the partnership accounts, citing Dukes v. Kellogg,
[3] The point next made by defendant arose below as follows: As seen, the defendant filed, with his answer, a document which he designated therein as a "cross-complaint," and which the court below held to involve nothing more than the pleading of counterclaims. There is no point made here that the court erred in so holding. Hence, we will treat the claims set up in the part referred to of defendant's pleading as counterclaims. It will be noted that the counterclaim first set up by defendant is founded upon an alleged indebtedness of plaintiff to defendant in *467 the sum of $1,020.51, alleged to be due "said copartnership of Tingley Elmore" for "goods, wares, and merchandise, consisting of groceries, dry goods, general merchandise and cash advanced, sold and delivered by the said partnership . . . to the said W.W. Elmore," etc. On the eighth day of October, 1924, the plaintiff, through his counsel, served or caused to be served on defendant, through his counsel, a typewritten demand, dated October 24, 1924, that said defendant, within five days from the date of the service thereof, deliver to plaintiff "a copy of the account and moneys referred to in the counterclaim set forth in your answer in this action, in accordance with section 454 of the Code of Civil Procedure." It appears from the record — in fact, by admission of counsel for plaintiff — that an original and a carbon copy of the demand were prepared; that counsel for plaintiff caused the original to be filed in the office of the clerk of the court with the papers and files of the action, and the carbon copy, with the name of plaintiff's attorney, typewritten, at the end of or underneath the demand, to be served on defendant. Due service of this copy on the eighth day of October, 1924, was attested by the affidavit of the office clerk of plaintiff's attorney. In fact, the attorney for defendant admitted that he was served with the purported demand. But no heed was paid thereto by the defendant or his counsel. In other words, a copy of the account upon which the counterclaim first alleged in defendant's answer was founded was not furnished or delivered to plaintiff or his attorney by defendant or his attorney. When defendant, at the trial, offered evidence to prove said alleged counterclaim, objection by counsel for plaintiff to any evidence being given or received in support of said claim on the ground that the demand for a copy of the account out of which said claim arose was not complied with by defendant was sustained by the court. Defendant here vigorously contends that the demand was wholly void and of no effect for two reasons and that he was not required to furnish a copy of the account upon a purported demand which in law was no demand at all. The two reasons are: 1. That the law contemplates that the original and not a carbon or other copy of the demand shall be served upon the party setting up the claim and from whom a copy of *468 the account is demanded; 2. That the law requires that the party entitled to and making the demand for a copy of the account shall subscribe in his own handwriting his name to the demand.
So much of section 454 of the Code of Civil Procedure as is pertinent to the present inquiry reads: "It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof."
[4] The above section does not, as will be noted, prescribe a particular form of the demand which must be served upon the party from whom a copy of the account is demanded; but it must, of course, be in writing, as the section so declares, and, although the section does not expressly so provide, it should either be signed by the party making the demand or contain some other clear indication that the party making it is the party against whom the account is set up, since, obviously, the party upon whom the demand is made is entitled thus to be furnished with information from which he can determine whether the demand is made by a party entitled to be furnished with a copy of the account upon which the cause of action stated in the complaint is based. [5] Nor is it necessary to file the demand in the office of the clerk of the court with the files and papers in the action, or at all, since the statute does not so provide. But it is difficult to find a substantial reason for holding that the document served upon defendant by plaintiff as a demand for a copy of the account from which the counterclaim first set up in the answer arose is not sufficient as such a demand merely because it was a carbon copy of the original document or demand prepared by the plaintiff. [6] The object of the demand is, obviously, to secure to the party making it reasonable notice of the items constituting the claim which he is required to meet so that he may prepare for trial. (Ames v. Bell,
Nor do we think that the fact that the attorney for the plaintiff caused his name to be attached to the demand in typewriting rather than subscribing it thereto in his own handwriting made the demand or the service thereof any the less legally effective. The demand contained the title of the court and the cause, and underneath the typewritten name thereon of counsel for plaintiff were the words "attorney for plaintiff," indicating that the said attorney was regularly acting for plaintiff in the litigation and for the latter had the legal right to make the demand. The necessity, if it be necessary, that the demand be subscribed by the party making it is deducible by implication only, since section 454 does not expressly require the name of the demandant to be subscribed to the document. For this reason we think that the adoption by the attorney for plaintiff of the typewritten method of attaching his name to the demand at the bottom thereof was sufficient (Ligare v.California S.R.R. Co.,
The failure of the defendant to deliver to the plaintiff within the time required a copy of the account upon which the counterclaim first set up in the answer was based justified the trial court, in the exercise of its discretion, in refusing to allow defendant to introduce evidence tending to prove the account. As to the counterclaim secondly set up by defendant, the trial court ruled that the said demand had no reference or application thereto, and, therefore, permitted defendant to introduce evidence in support thereof.
[7] It is next insisted that it was error to deny the motion for a nonsuit by defendant made on the close of the *471 plaintiff's case upon the ground that it was by plaintiff's evidence shown that the obligation which is the basis of the cause of action stated in the complaint "was a partnership obligation and that this was a suit between partners." This contention cannot be sustained. Indeed, it is not consistent with the defendant's own statement in his brief of the facts developed by the evidence presented by the plaintiff. That statement is: "On the trial it developed, over the objection of the defendant, that the plaintiff and defendant had for a great many years been associated together as partners in business in Tehama county. That during the said time certain moneys had been advanced for the use of the firm by W.W. Elmore, one of the partners, and that as proof of said moneys advanced, defendant, J.M. Tingley, had executed a note for and on behalf of the copartnership and had given it to the plaintiff, W.W. Elmore, which note is the basis of this action."
The foregoing statement, candidly made by counsel for the appellant, is in accord with the evidence introduced by the plaintiff, and clearly shows that the court was legally without authority to grant the motion for a nonsuit. It will not be doubted that, upon the situation as to the evidence so disclosed, the plaintiff, no less than a stranger to a partnership to which he has loaned or advanced money, has the right to maintain an action against the partnership for any money he in his individual capacity loaned to it. The action upon the claim would, of course, be subject to any defense which the partnership might be able legitimately to interpose against recovery thereon or the right of the partnership to set up any counterclaim or offset that it might be able to set up against recovery by plaintiff on his claim, either in whole or in part.
The findings are sufficiently supported. There was testimony offered by defendant and received into the record tending to establish the counterclaim secondly set up in the answer. The defendant also testified that the obligation evidenced by the note in suit was covered by another obligation in favor of plaintiff and against the defendant and the partnership which had been paid and satisfied. All this evidence, however, was contradicted by the plaintiff, and thus there was created the evidentiary conflict upon those *472 matters which it is always solely the function of the trier of the facts to resolve and settle.
The judgment is affirmed.
Plummer, J., and Finch, P.J., concurred.