*1 Freeman 1923.] v. December 26, Appellate Third District. No. 2589. [Civ. DONOHOE FREEMAN, L. FRANK Respondent, C. al., Appellants. et [1] ment of a Partnership—Accounting—Equity.—An partnership and its affairs an action equitable for action settle and
is to be in courts of this state. considered as such [2] where an action Id.—Refusal only statute seeking accounting of limitations an Accounting—Statute accounting and settlement and settlement of can is refused pleaded one Limitations.—The a bar to partnership, partners, an is section 343 of the Code of Civil Procedure.
[3] Id.—Period of tions does ing tion cannot be sustained. settled more than two accounting and settlement and accounting balance Accounting run years prior settlement of between the is refused agreed on; therefore, cannot extend backward Permissible.—The statute of one of partners partnership, commencement until partners, in an action where accounts the conten an account the action a. seeking limita period [4] (cid:127) partnership specified actions were evidence in ing Id.—Properties tion of the accounts was referred to an Id.—Preparation cannot be entirely adopted by ascertain contention, report, seeking lands was purpose sustained, relation tо such lands regard an accounting and justifying figures upon appeal, over Partnership—Evidence.—In conflicting, the referee and the where the evidence Accounts—Books Used—Evidence.—In an buying partnership settlement that “evidence was ownership objections there was evidence prior selling of a settlement court in determining of defendants was almost the account was subject to the dissolution of the court, partnership shows that real expert disposition improperly aof estate, this action seek accountant showing an accounting. prepared entered partnership, of certain while the admitted prepara- made,” trans into plead Bight partners statute limitations, 2. note, Rep. Am. St. 755. Running 3. of limitations statute action for accounting partnership, and settlement after dissolution of note, Arm. Cas. 1918D, 1107. admissibility 5. General rule books in evi- R. dence, note, 52 L. A. 833. App.—5 65 Cal. v. Donohoe. kept entirely the books of the which were
under books and from the direction of of the defendants one companies other whose accounts associated or controlled partnership. compared by, upon, balanced and relied *2 properties, Trustees.—All the [6] Id.—Dissolution—Pаrtners as having both personal, partnership real been held and of the possession the of the dissolution and control of defendants after partnership, partnership, defendants, upon the dissolution of the all being trustees, were at plaintiff, became and trustees for dis partnership times and after its during the existence of the highest good solution plaintiff to in faith. bound the [7] [8] [9] shows and that ship, properties and purpose flicting, partnership having property sold, was one within —Findings.—Sales their the action and seek an accounting Id.—Sales Id.—Dissolution—Joint Id.—Bight that tiff, dence and defendants, no error in not or the time of present position, prayer of filing on position at all times there one dealings sales, that, the partnership adjudication as between the plaintiff had of their but had ever reporting settlement op anything requiring both before business, and buying province allowing them credits to which plaintiff’s response the referee was not properly Property settlement making appeal, other Credits—Pleadings—Issues—Evidence.—Where proceeds transactions made their answers submit put opening brief expenses, jurisdiction been simply of it out of nothing to complaint took evidence as the selling detеrmining Judgment.—In After Dissolution—Value—Evidence plaintiff’s complaint, during the trial of therefrom and had defendants after the dissolution urge sales; after the dissolution of the partnership defendants but on account pleadings partnership, an examination partnership of the trial court. real account of the themselves, their on absolutely do with this limited to the denied appeal, the estate, the trial court power a to the affairs, handled an action valuations report the evidence and that they entered but charge of where the defendants defendants denied did partnership value of by the his share merely deliver function they money proceeds were entitled. and account case and taking of evi into under oath seeking partnership maintained committed appear ask the partner wore for do not recover affairs of the books, plain until fixed land con created, notes, 27 partnership real estate trust When 6. S.) (N. 899; L. E. 100; B. A. A. 98,A. 37 Ii. 468; Ii. 28 L. B. B. A. 1918A, 927. Donohob. both, joint costs, judgment plaintiff entire amount due is not erroneous. partnership, within four times reasons for tion to and settlement affairs Id.—Evidence—Laches.—In given bring about an amicable which the refusal a division years and the evidence was not had equity, after endeavored for partnership, guilty of its trial court dissolution, of laches. properties, having relief over a settlement complaint shown, because of laches is some and the absence of justified year mutual seeking an among after having consent, other the dissolu determining been things, filed
APPEAL Superior from a Court Glenn County. Bell, Judge. H. C. Affirmed. opinion
The facts stated in the court. Hankins, Hankins & Berry W. T. Belieu and F. L. Appellants.
George R. Jackson Freeman, Hatch and F. H. Gould Respondent. for By this pro BARTLETT, J., P. plaintiff action the tem. accounting
seeks an and settlement copartnership of a be- alleged tween himself and defendants, to have been entered January 1907, on or into about 1, and dissolved mutual on or day June, consent about of the first 1910. The com- plaint in the superior action was filed in the court of Glenn County, California, May 26, on An 1914. amended answer complaint filed May 1, on May 1915. On 19, 1915, began Judge trial the action before the late County, July J. E. Prewett Placer and on 25, 1921, findings of and judgment fact conclusions law and plaintiff favor and defendants were filed in the superior County. court appeal Glenn from An been taken supreme defendants to the assigned court and the matter has hearing been appellate appellate court the third district. alleged finding
As the cоmplaint, was made copartnership that a was entered into between these parties County, California, in Glenn 1, on January or about object 1907, purpose selling with the buying and and Ap,p. county particularly California, and x*eal estate city lots state, the sale of lands and in said and of Glenn conducting engaging in the commission, general, and in prop- therein; profits and business that all of a real estate equally; that acquired erties should business agreed by that & Barceloux name J. be conducted under the of H. should agreemeixt real Company; in accordance with that Willows, Glenn opened city estate business was California, therein County, continued business and state I 1910, partners, until on or about June time the eo- no copartnership; mutual dissolved the consent, has existed paxdnership said dissolution since business parties, accounting of the no except copartnex’s, been between the save has ever had action. involved in this duxdng of the the existence court found continu- conducted copax-tnership business affairs were its part consultation on ously defendants without by the partnership, plaintiff; that after the dissolution of the with partnex’s had ever relation of denied from plaintiff, and the time them and existed between continuously relationship, re- such denied dissolution copartner- property all possession tained in their claiming claiming the same themselves and ship, own therein, that he had never no interest had plaintiff though copartnership; re- member of the and that been a dissolution, appellants after the refused quested so do plaintiff partner, and refused to recognize account business and had transactions any participation excluded had, and been axxy business, enjoyment the affairs copartnership. profits after the dissolu- plaintiff, trial court also found that *4 receipts account tion, repeatedly demanded an of and the pax’t copartnership, and a one-third of the disbursements his, plaintiff claimed to be that and defend- therein which any to in plain- refused manner account all times ants at copartner- the part deliver of or to tiff plaixxtiff. ship to denying
By defendants, after all answer amended forth, allegations separate complaint, the as answers set the forth set action cause of defenses, one, alleging- and the same, barred was the complaint, whole the the and 339 of 1 of section provisions of subdivision action cause of another, Procedure; Civil Code of thereof, was whole complaint, set forth in the 1 of provisions section barred of subdivision another, that cause Procedure; the Code Civil thereof, whole complaint, forth in and set 4 of section provisions was subdivision barred another, Procedure, the Code Civil bringing delay in guilty and unreasonable laches the action. on each
The defendants found separate main upon the interposed, defenses well as cause of action. stage superior de- every
At court the the trial respondent’s vigorously claim a co- fendants resisted partnership parties, kind ever existed alleged complaint; in the but that such a they briefs, opening existed, now admit in both reply, appeal. have on this In the submitted opening (pp. 5) say: brief 4 and “We do challenge propose findings of the to the exis- court as alleged partnership tence and will confine ourselves points forth”; closing hereinafter set 2) expressly (p. opening : brief brief “We stated in our dispute although that we not intend to such we finding, did disputed, dispute, properties included and still certain accounting part form partnership did not This admission simplifies, assets.” of the defendants great degree, question presented solution of the appeal. by Judge trial of cause was conducted Prewett First, showing lines:
on these re- lation, documentary close, oral both At its taken. interlocutory directing decree before a appointed thereupon made. The referee was referee evidence, he heard oral and said referee documentary, expert secured the services of an examine accountant to report submit a on the be- business transactions ginning accounting. the time of findings court, of the referee reported were then *5 Freeman v. Donohob. ob- evidence, number of and a heard after which the findings
jections interposed the referee’s by defendants to directing findings and order made and filed an herein. The plaintiff involved in favor opinion before interlocutory of the court referred decree and understanding of matters and evi- in an assist will they being as follows: action, in this dence involved “Interlocutory Order.
{e
“In this the motion case it is ordered that submission (having after the been made nonsuit case) hereby dismissed. be and same is “By interlocutory order, further ordered this adjudged entitled that the complaint, the affairs described accounting be had. and it is further ordered that such accounting be had before is further such “It ordered that pur- appointed Graves, hereby as a referee John pose. take evidence
“It is further ordered that said referee following properties: report finding as to the facts " Bailey tract; Hastings 16; Deveney tract; Land, sec. land; tract; land; Iglick acres; Dixon Bareeloux Watt Beager Bogers land; or land and Bice commissions thereon Quatmam Co.; Armstrong, under with & also other contract firm; County Irrigated commissions due from Glenn said commissions; Kelly lands; Farms and Willows Land Cartenberg Company’s Improvement Selby lands; lands, follows; lands, to wit:
“(a) sold, pro- As to lands heretofore the amount of arising sales; such ceeds
“(b) by As to commissions earned IT. J. Bareeloux' Company or action, this the amount thereof;
“(c) As to yet of the above mentioned lands that unsold, remain the value thereof and the amounts contrib- thereof; each party purchase handling uted the amount party way received each rents profits; other
“(d) A division unsold parts lands in three equal value and a memorandum of per- office fixtures and sonalty.
“(e) sub- Independently of matters embraced designated of this ‘d’ amount divisions order marked or remaining plaintiff, partners due frоm the two be shown items ‘a’ and ‘b.’ completed “It is ordered that said reference practicable reported the earliest duly date, *6 Court. open day October,
“Done court this 1915. 22nd Judge.
“3. E. Pbewett, 25, “Filed October 1915.”
“Opinion Order. complaint “The avers a the formation of Frank Freeman, C. L. J. Barec- Donohoe and H. loux, commencing beginning year about the terminating about June 1st, 1910. parties
“The above from time to time various real estate singly, each transactions—sometimes times other participating two and at other times all three. Whether those participated transactions in which all three constituted merely joint transactions or ventures constitute principal question determination of the Court. parties appear
“The relations be exceptionally to strained and the ease itself developed much bitterness. replete charges The case fraud, with forgeries, mutila- tions, erasures, suppression perjury, evidence, and de- attempt struction books. This Court will make no those matters determine save necessarily arise course of the decision of the case. year “In the 1907 C. L. Donohoe, H. J. Barceloux and co-partnership Mr. Gutman a purpose formed dealing partner real estate. Each small contributed a purpоse starting sum for the the business. Near year close of the Mr. Gutman retired from the business and delivering Freeman, interests over Frank turned his agreement. co-partnership Mr. copy latter Gutman, remaining co-partners inquired of whether Freeman satisfactory partner for Mr. not it was enter the Thereupon that them it was. he ship, informed fact, Mr. and Mr. Freeman claims Freeman informed thereupon thereby partnership. entered he v. “Mr. Donohoe and Bareeloux the retire- insist ment of Mr. co-partnership Gutman the was dissolved and re-organized. never however, This contention, cannot he sustained. Whether or not Mr. Freeman became a mem- ber of partnership, question there seems to be what- no ever, and firm that the II. J. & continued Bareeloux Co. to do years. business for a number kept It set a employed books, paid a main- bookkeeper, rented and paid tained an office, rent, heads, displayed signs, letter used and handled a vast I volume business. take it every during resident of years Willows would have stated without hesitation there existed well known firm transacting firm business under the name of H. J. Bareeloux & Co.
“That Mr. Freeman firm was a member of this is not quite certain, yet largely proof very pre- so the burden of dominates in favоr of If that conclusion. the evidence of eliminated, scarcely this action be there is every doubt of it. It practically seems that fact in the case any way depend upon testimony not in does the oral litigants, partner. he tends show was such *7 (copies) genuine, “Exhibits three if two, and four es- plaintiff’s they tablish the genuine, case. are be That must held the is they Court. It from un- true that emanate friendly sources, production but the manner their especially testimony Pierce, of Miss the that tends to show genuine. (Copies 2 are of Ex. and 3 and 4 follow this herein.) opinion
“Exhibit typewriter usually one was written on the used ‘08,’ ‘a,’ Mr. Donohoe. Examination the characters especially ‘bar,’ bottom letter ‘x’ the show this. by any that it was so written is not means The fact con- clusive, weight. but it is a circumstance of much if Even plaintiff, it was written at the* the it written was instance parties very warm friends, at when a time temptation existed no to fabricate when there a case. co-partnership loss the defendants of their “The books permitted unfortunate be is an circumstance must weigh quite to some extent them. It seems certain light upon question that throw much these books would under review. now correspondence parties
“The tends to show between the 40 ex- co-partnership existed. Out hibits, in evidence, letters offered all of them emanate almost plaintiff.
“The contention that a settlement arrived con- This clearly a mistake. June, certainty, clusion its seems to almost mathematical transpire many since items not included in it did long until mis- most, after date. At the defendants taken in their remembrance of the fact. given by
“Exhibit defendants to showing profits joint memorandum probable very important efforts. This exhibit is a document in only go connection. exis- establish Not it far to does tence partnership, of a purports contain a resume but it of its properties. (A copy transactions and Exhibit opinion.) follows this
“Upon whole, fully conclusion estab- seems to complaint lished that the co-partnership set out formed at the properties time stated and handled the that it enumerated Exhibit 15. prevail
“The motion to out strike must answer the reason it was filed without Court. leave stipulation conflicting must as to so (which be held burden admittedly upon rests defendants) sufficiently been overcome. are very permit
“Moreover courts loath to amendments purpose plead whose it is to Statute Limitations. striking an order be “Let entered out amended answer. perhaps judgment.
“The ease is final condition for Still, party if either wishes to offer further evidence point values, party as to the such days within so indicate five set case will be hearing point. further as to said down for *8 plaintiff indicated, pre- “If such wish be no then the will proposed findings and file and pare, serve decree.
“Prewett, J.” appears showing Nothing either of record that opportunity of the offer further themselves availed 74 v. Judge findings
evidence after made order as Prewett and judgment, as above set forth. judgment appeal
The from entered and which this adjudges taken plaintiff defend- have and from recover jointly ants lawful severally $31,504.85, and of the sum money of from the the United thereon States, with interest date of 26, 1914, the institution action, May of the $47,- rate per making of seven per annum, cent a total 260.31. judgment adjudges' plaintiff and and decrees that copartners, doing estate general were real during County, California,
business in Glenn state of times complaint stated in the the dissolution and until parcels number 1910; on June that a paragraph real properties, particularly described in judgment, copartner- property was and is the ship and and plaintiff, when instituted the action was judgment un- when the owner of an rendеred, properties divided that defend- one-third of these real and remaining ants and are owners of the two-thirds obligations thereof: kind every all of the debts and organization of said from its time judg- giving time fully partner- paid, satisfied, settled; ment are ship commenced, did not have when the nor now, since, property, it had nor is it the owner of other lands real, personal, mixed, profits other than its to, except prop- certain above referred save interests judgment, erties which are described subdivision to which described in said subdivision right judgment relinquishment filed might renouncing all have, interest he claims every consenting nature that the same kind and thereto defendants, be awarded same were so awarded. against judgment further lien the defend- created a right, in favor of all the
ants defendants, them, and -interest of the each title, and, undisposed property, and to the unsold real which was paragraph -judgment, to secure described *9 plain- judgment of the payment of the in favor money tiff rendered in action. and fully described
The unsold real property is prop- these paragraph judgment, set forth in and of the sepa- erties are sold, directed to be either as a whole inor parcels, by Glenn, who is county rate the shеriff of appointed legal to title a commissioner and invested with the whole, said property real as a and to sell the same directed separate or in parcels might be to to as he determine parties to public sale, best interests of the a time at at days ninety fixed within commissioner entry days, judgment, upon of at least fifteen notice might any and the action that at the sale of the to directing, purchaser thereof, become part and acknowledge com- commissioner to deliver and deeds n properties missioner, conveying purchasers right, title, all the and of and of the interest properties plaintiff and and to said defendants in receipt and purchase prices purchasers, of the from the directing proceeds retain out of the the commissioner expenses paid out and costs, charges, him received and proceeds payment due him and remainder said court, pay plain- clerk of to the clerk said proceeds tiff of his one-third of net for and on account one-third and much of interest such so necessary remaining proceeds two-thirds these as remaining liquidation unpaid liens thereupon judgment; clerk enter in time on the said judgment re- is judgment-book court in which the money paid a credit the amount corded representing the -two-thirds interest remaining any proceeds ; pay the clerk to to the defendants plaintiff. The- payment made to ordered after re- adjudges judgment decrees that also of $731.85. taxed at the sum which were costs, cover signed E. 1921, by J. 19, July dated July 25, 1921, as Judge, indorsed filed Prewett, as county clerk. Sale, H.W. Judge opinion order of referred to Exhibit follows; forth, set Prewett, hereinbefore Fkeeman v. Donohoe. “Report Company & Bareeloux business date show- ing profits actually purchase made in earned values land, commissions for follows: sales,
Profit land, per............ $4000.00 Elbe acres $60.00 Hastings land, 6000.00 Section 16................. Deveny 5000.00 Tract .................. 9000.00
Bailey Tract ............................. *10 4800.00 Dixon Land .............................. 3000.00 Land .............................. Watt 1600.00 Bareeloux acres....................... 6800.00 made....... Winkler land an acre offer $150 1037.75 Iglick land............................... 1272.00 ................................ Rice land _ Rogers land under contract with Reager or 1333.33 Rogers ............................... con- Rogers tract under sale Commissions Armstrong-Quatman Co. 5000.00 with tract 5% Armstrong-Quatman Co. on Commission 3360.00 already sold Orland............ land 1800.00 Irrigated Farms......... Commissions G. C. Syn- Pittsburg options for Commissions on 9000.00 ............................... dicate 800.00 Kelly .............................. Land Improvement & Co. Willows Land Profit today........ 7500.00 can sold for at what
$71,303.08 Bareeloux & Co. members In addition Irrigated in the interest have united 7,500.00 of... Company of the value land Farms 5700.00 Bareeloux......... Land to Colby Profit 3900.00 and Freeman each............. To Donohoe the contracts now to the above In addition Armstrong-Quatman with under contract yet at Orland of land Co. sale Rogers will net sold, tract exclusive 10000.00 Co. when sold............ & Bareeloux
27,100.00 $98,403.08 Fbeeman actually figures on Sales “The are made either above buy, or consummated values fixed bona offers fide figures profit liabilities. show a over above all day November, “Dated this 23rd 1909.” “1,” Judge opinion Prewett’s Exhibit referred to forth, findings order for hereinbefore set judgment, (Plaintiff’s One.) as follows: Exhibit Barceloux, presents: “Know all men these That H. J. County Gutman, Donohoe, G. L. A. and C. all of Glenn, California, day State them- have associated together presents selves do co-partners, and these agree co-partners together, under to become business style Co., the firm name and of H. J. Barceloux & buying selling business of personal real estate and property doing general California, State of and in County Glenn, business in the of Cali- insurance State fornia. This hereof is to commence on the date consent, and to continue until hereafter mutual dissolved operation agreed court, law of a and it is during co-partnership at all times shall bear, pay discharge equally and will all them expenses required sup- rents and other for the *11 pоrt management gains, business; said that all profits come, grow, shall from or increase that or arise by means of business said shall be divided between them happen alike, share and loss shall share and that all joint debts their business bad or otherwise shall paid equally borne and between them.
“In whereof, witness have hereunto set their day March, hands and this 2nd 1907. seals L.
“Chables A. Gutman. “G. J. Babceloux.” “H. Judge Prewett, year “in the 1907 C. L. statement of The co- Mr. Gutman formed a Donohoe, H. J. Barceloux and dealing Each real estate. purpose for the purpose starting sum for the partner contributed small re- year Mr. Gutman Near the close of the business. business and turned his interests over tired from the latter, copy delivering Freeman, Frank agreement. inquired copartnership Gutman Mr. satisfactory copartners remaining or was whether not . A'pp. Freeman Donóhoe. partnership, informed
for Mr. Freeman to was enter Mr. Thereupon he by them was. informed that it thereupon of this and Mr. Freeman that he fact, claims thereby and concise partnership,” entered is a clear incep- fully supported statement, by the evidence as to the tion and creation the formation herein. involved
G. A. Gutman as a witness at the was examined prior to the that, the action and his shows transfer way interest, Mr. Freeman of his some business by him- had been of insurance and commissions transacted (cid:127) copartnership. self under and the defendants appeal, opening In brief their able and elaborate urge 1. The appellants following grounds for reversal: right accounting barred the statute plaintiff’s right limitations; plaintiff’s if to an account- 2. Even accounting ing statute, was not barred could years prior period than two extend backward for a of more accounting im- action; 8. to the commencement of the The subject of properly transactions not included therein improp- 4. accounting parties; Evidence was figures upon ac- erly ascertain the admitted to counting made; expert account- 5. referee and the upon passed not within considered and matters ant allowing scope authority; 6. erred in not entitled; The court 7. credits which moneys he plaintiff with with which charge the failed to prop- 8. chargeable; The valuation of properly certain have made after dissolution should been disposed erties being acquired same dissolution of the time of the disposition, and the values found and not weight evidence; 9. The referee were judgment against joint it is a judgment is in that erroneous fails to based both defendants jointly jointly received or were such defendants show that respect judg- of which amount responsible rendered; 10. The erroneous in that ment was *12 defendants, judgment against joint both whereas the it is a moneys that some included shows alone; judgment were received one finding is in that is no erroneous there 11. The 12. The trustee; constructive was a either defendant that findings of the court and referee were erroneous and also to justify judgment; guilty fail 13. Plaintiff was laches. being
Because equity of this an and not one argument at law much of appellants of counsel for and uphold positions authorities cited do not urge judgment. as reasons for the A reversal mis taken idea is that, often entertained asserted under our system of longer code pleading, there is no distinction legal equitable actions of a an and those of character, prevailed separate such as formerly when courts of law equity provisions 4, obtained. The of section VI, article providing constitution of the state that supreme appellate jurisdiction court should ap have peals superior from the except equity, court in all cases in justices’ such as arise from courts; court district appeal appellate jurisdiction “shall have cases, in all proceedings matters and pending supreme before court which shall be ordered supreme transferred court appeal district hearing courts for decision,” section VI article providing of the constitution superior “the original shall jurisdiction court have in all equity cases and in all cases at law which involve the etc.,” title of real property, themselves, recogni show the legal tion of a distinction in equitable proceedings brought superior in actions on for trial in the courts of the state. There can be no question action for the settlement of a partnership and its equi affairs is an table action and to be considered as such in the courts of this state. In the Kuhland, case of Marston v. 2 Cal. 357], Pac. said: “This court an action
enforcement of a trust accounting. appeal directly By is taken VI, this court. section article ‘appellate jurisdiction ap the constitution the state, superior peal except courts in all cases in equity, justices’ courts,’ given such arise in Supreme to the By Court. the same section and article of the constitution provided it is appeal ‘no Supreme taken to Court Appeal or to a District Court shall be dismissed for only reason proper same was not taken court, to the but the cause shall proper be transferred terms such as to costs otherwise just, *13 Oal. 80 Freeman v. Donohoe. regularly to.’ appealed ifas proceeded therein shall be with of the constitution perfecting appeal, provisions In these cause by appellant. When the overlooked were doubtless by was assumed argued submitted here it Court, Supreme of the order of reference that it was here attention. appeal having to our been called the notice not only appealable clearly equity’ is is one ‘in The case jurisdiction Supreme has Court, which alone action for an account- clear an first instance.” It is beyond ing equity, for is is action in it a -an arising question carry a trust is an action to out Code, provisions of the Civil because section of the They are partners confidential. trus- are “the relations chapter meaning of 1 of the for other within the tees each obligations de- trusts, trustees are and their as such title chapter.” fined fiduciary parties, relation exists between
“Where a upon an duty render the defendant account rests jurisdiction for equity will suit plaintiff, entertain a although nor accounting, is an neither mutual account in- complicated. The most common of are those such eases administrators, trustees, guardians, volving executors agents Although it trust partners, and cotenants. gives jurisdiction involved such cases relation strictly equity, relation need tech- a court trust, quasi rela- que relation of trustee and cestui nical Jurisprudence, being (Pomeroy’s Equity sufficient.” tion “ 2358.) equitable jurisdiction is ed., . . . The sec. 2d proceedings practically an exclusive account also including ac- partnership affairs, suits settlement counting firm co- and settlement affairs between the' themselves; a settlement firm suits for of the partners survivors and the or admin- between the executors affairs partner died; when deceased, istrators adjust of an insolvent firm settle the affairs and to suits to firm and the creditors creditors the demands equitable partners. jurisdiction part- over individual necessary outgrowth jurisdiction nerships over is a accounting, dissolution, injunction, remedies of necessary complete receivership incidents a final and Jurisprudence, (Pomeroy’s ed., Equity relief.” 2d sec. 2362.) 339 of 1 of the Codе Civil Subdivision section Procedure, appellants under plaintiff’s claim action barred, “Within years, upon reads: two 1. An action obligation contract, instru- liability not founded writing, ment of other than that mentioned subdivision code, ...” of section 337 of this not authorize does contention defendants’ is barred from provisions relief section. Neither can upheld plaintiff’s contention be cause provisions barred of subdivision of section 338 *14 Procedure, provides of Civil Code that an action years be commenced within must three where it seeks relief upon ground mistake fraud or that a cause of action in such is case not deemed to have accrued until discovery by aggrieved constituting party of the facts regarding or the fraud It mistake. is clear section applicable limitations now toward actions such before the court 343 of the Pro- is section Code Civil cedure, which is as “An follows: action for relief not provided hereinbefore be four commenced within must years after cause of action shall have accrued.” While this court is satisfied that only statute pleaded seeking limitations that be "can a bar to an action accounting copartnership a settlement of is the above section where an one is settlement refused partners; of the there is the further statute limitations in Procedure, contained 337 of section the Code of Civil provides upon obliga contract, writing tion, liability an instrument founded in brought years, which, be within four under the facts case, any pleas being in this would overcome of the action agreement original barred as the out of which case this agreement partnership writing among arises was made Gutman, Donohoe, organization and Barceloux, there Co., under of the firm of H. Barceloux & J. sub the' sequent partner transfer of interest Gutman in such ship with the consent two other members, and Barceloux, Donohoe the defendants herein.
The distinction between eases at law and those equity has drawn a number supreme been instances very early period. this state from In Barnstead Empire Mining Co., 299, 5 it v. was held Cal. that one partner could not sue the other action at law. The App.—6
65 Cal. Cal. v. Donohoe. [65 remedy equity bill in for a dissolution and an account ing. In Wheeler Farmer, v. 38 Cal. was held 203, it no action maintained, can law nor can an attachment partner against sued out one any money another for involving partnership affairs. In Cornell, Ross v. Cal. 133, it was partner retiring held that onе from firma can money alleged not be sued for partnership to be due transactions until there has been final firm settlement of accounts and a balance been In struck. Gleeson v. White, 258, 34 Cal. held that the relation of debtor creditor surviving partner representa between the a, partner tive of deceased does not until affairs arise up have been wound and the balance struck, partner balance is to be struck after all the ship being affairs have been settled and not while up. wound In Cuyas, 47 Pico v. Cal. it is said: “For lessor a hotel entering after a is made into a con lease tract beeping same, with lessee lessor cannot law sue at rent for the in the lease reserved but accounting.” must sue in In equity for a Sweet, Fisher 657], Pac. it is that a held partner copartner cannot maintain an action proportion recover his partnership proceeds until n theaccounts of firm have been Dukes v. settled. In *15 Kellogg, 127 44], part Cal. 563 it was held a [60 Pac. copartner ner cannot sue his in action an an at law unless is and settlement of the accounts alleged complaint. in the supersedeas
The issuance of writ the of in ease at bar the by supreme reported the Califоrnia, of 188 in Cal. suspension thereby 593], 170 Pac. the bond of money in judgment stay double the to amount levy required issuance and execution as would in of legal ordinary through case of arisen this special requiring equitable procedure carry case to out the strongly illustrates the distinction which ob- legal equitable tains between actions of a nature. of in While statutes limitation must be heeded in actions period specified of equity time within therein regarded brought legal may actions, as in actions specially great not favored and are esteemed, are as those equity developed through principles of the cen- have 83 Fkeeman have well been denominated limitation turies. Statutes of salutary repose.” is There are actions where it “statutes this by in trial court But, to aid. said invoke their findings judgment, hereinbefore in his order for case, permit very loath forth, “moreover, courts are set n purpose statute plead it amendments is whose Pro- Civil 343 Code of limitation.” That section courts applicable cedure is the statute of limitation involving of all state in cases settlement all is affairs existence denied whose decisions accounting required clearly is established of Cali- in appellate a number courts of instances fornia. Co.,
The
52
con
Piller v.
Pac.
is
case of
Southern
appellants and
sidered
for both
and discussed
counsel
respondent
personal action
in their briefs.
was a
That
injuries were
negligence, brought
years
two
after the
over
suffered. Claim was
343 of the Code
made that section
Code
applied
Civil
339
Procedure
instead
section
Procedure,
of Civil
1.
court held that
subdivision
gov
being
law,
of section
action,
one at
subdivision
years’
erned, saying:
opinion
the two
“We are
first
of the first subdivision
limitation found in the
clause
spe
applicable
section
to all actions at law
say
portions of
We
cifically
in other
the statute.
mentioned
the time
advisedly,
actions at
since section
fixes
law
ar
equity
certain
be filed.
In
within which
in
bills
lawmakers,
expressed
riving
in
at the intent
history
legislation in
proper to consider the
statute, it
subject
state,
in our own
respect
same
and in
country
laws
in
main
which our
derived.
terms,
not,
English
statutes of limitations
ap
equity,
applicable
because
words
to suits
used
particular legal
only
remedies.
It was at
time
one
plied
equity
analogy
acted
discussed whether courts
much
spirit of,
statutes,
to,
so,
within
or were
them;
however,
is certain,
obedience
sense,
acted
except
jurisdiction,
concurrent
cases of
that,
courts
analogy
only limitations at
equity acted
law.
*16
pleading
by
our code all distinctions
“While
equity
abolished,
at
law and
different
suits
law
long,
common
existed
of declaration
so
forms
84
Cal.
v. [65
ingrained
became so
legal
thought,
habit of
very codifiers themselves have
copy
contented
been.
provisions
English
respect
personal
statutes in
actions,
substituting
sometimes
for the technical names em-
ployed in those statutes
supposed
what
to be their
equivalent
English.
in ordinary
reading
statute,
Thus
years’
the four
applies
limitation
section 343
suits
to all
equity
not strictly
cognizance
of concurrent
in law and
’’
equity.
In Dorr
100,
v. Thornburg,
Rep.
90
64
Am. St.
[25
27
30],
Pac.
brought upon
foreign
which
judg
was a case
ment, it was held
by
it was not barred
the statute of
limitations
years
within two
section
under
339 of
Code
of Civil Procedure, but
provisions
falls within the
of section
343, representing
for,
provided
actions not otherwise
not barred
years
statute until four
after
cause
of action has
Russell,
accrued.
In West v.
74 Cal.
[16
392],
Pac.
brought
was an
the administrator
an estate
the administrator and heirs of an es
tate for
property
for a
directing
delivery
plaintiff,
of certain
it was held that the statute of limitations
which the
under
demurrer
complaint
was sustained was section
of the Code of Civil Procedure, and
barred
that the same
asked,
years
the" relief
many
years having
in excess
four
elapsed before the
commencement
action.
In the case
Simmons,
of Rowe v.
It to this is clear that an by any case is not barred state statute of limitation the of California. The contention that “even if the plaintiff’s right accounting an by statute, was not barred the the account
ing period not could extend backwards for a of more than years two prior action,” to the commencement of cannot the be sustained. regard given in doctrine is as case of
Hendry March, v. Cal. “The statute Pac. [17 502]: partners limitations does run not until ac agreed counts settled and the balance on.” It must be borne mind accounting an ac this case is counting copartnership of the affairs of equitable in an a proceeding accounting term such ac tion things many included would be not included in that term if legal the account were a one based ordinary transactions merchants trade, in the affairs of mutual, open, or on a and current account in which the charges might and credits something consist other than charges. mere money dispute Here the matters only not but of moneys, interests in lands and other matters adjudication for and settlement. The trial interlocutory directing accounting decree an orders adjudges accounting is entitled complaint the affairs described in the and orders that such limit had. be It does not period preceding account fixed of time bringing purpose of the action. the account was arrive at a balance ascertained creation time partnership to the time of the conclusion of the referee, taking court, of evidence if further required. evidence were
Appellants’ support authorities which cite not do claim that no items partnership can included in a precedes period prescribed by account the statute ordinary recovery accounts. reliance is Great Flynn placed App. them on v. 2 Cal. Seale, Pac. [84 v. 263], Cash, Barr etc., Brass 38 Can. Hamilton Co. v. Seale, S. C. Flynn R. 216. In supra, the ease of partner defendant, Seale, paid moneys to hank had out purpose discharging obligation liquidating obligation his bank, under individual the terms “an contract. The court held obligation partner undivided a matter to a set-off ship representative claim or to claima in a capacity; claim nor can debt a set-off ’’ by one of the In case of partnership. members *18 supra, ex Cash, etc., Hamilton Brass v. etc. Co. Barr relation the amination the decision disсloses the of of agency partnership of was that instead and that reports agreed to accounting of were quarterly and sales the profits thereon, be and divisions the made and made right de profits existed from time were to sue the these the quarter. the The court holds end each termined ordinary partnership, and relation not in the sense a was questions involved the if of fraud were it also holds that applicable the in limitations not be even' statute of would supreme of Canada was action the account the on discussing. 346], Canty, 181 Pac. v.
The of Carter case merely involved ascer the application has no the legal of account claim for services taining a balance on money partner on the claim. in made No payments and ship involved. matter was
properly included [4] The appellants’ therein transactions contention that “the not the accounting subject im upheld parties” under the cannot accounting between the before referee and the court. introduced evidence sufficiency of the same was a' The determination province of the trial court." within peculiarly matter regard ownership disposition to the evidence The Improvement “Willows Land and described what are “Bailey” “Rogers” land, Lands,” land, Company’s land, conflicting, but there “Carttenberg” is evidence prior relation to these lands to the showing transactions and it been determined partnership dissolution they evidence introduced that were court on the subject to an action. Fbeeman Appellants’ contention that “evidence was improp erly figures ac admitted to ascertain which the count made” The shows cannot sustained. preparation the accounts referred expert objection made accountant and trial court grounds of' admission of the account the various irrelevancy, ob these immateriality, incompetency jections were heard and trial court considered entirely report overruled and the and almost admitted adopted by used referee and the court. records expert report from were which made his he Armstrong books of Company Barceloux & and those of Quatman Company Company. Armstrong-Quatman conducted the San business, Francisco end of & firm J. interested with the H. Barceloux Company.
The books books which the accountants were the examined during time of existence its. up accounting. after Also its dissolution to the time of the Valley Realty Cоmpany, books the Sacramento entirely by were controlled in this the defendants case incorporation up time of its time the account- Armstrong-Quatman ing, Company, also books of the kept good portion land which were of the accounts as to *19 in subdivisions involved this action and commissions earned compared by Barce- which were accounts balanced and loux upon & relied Barceloux such Company and in all being charge Barceloux member firm matters, the of the Company. the of account H. J. Barceloux & boo.ks firm The books of the both before and after the dissolution defendants, or partnership kept entirely by of the were the nothing supervision, plaintiff under their the had to do with management keeping properties, their nor with the of the properties, personal, part- both real all of the the nership after the were dissolution the held possession the and control of the defendants.
[6] The two upon the dissolution of the co- being plaintiff, became trustees for the during trustees, were times existence at all bound to and after its dissolution highest good faith. Cal. 88 v. [65 The keeping rule duties of trustees as to relative proper rendering books accounts of full account and dealings clearly their with the funds announced trust is Purdy Pac. Johnson, case of Cal. [163 893], obligation where it is under the said that “trustees are to render to beneficiary full all of their account of a dealings with the trust funds there has been and where negligent keep to ac- accounts, failure to true or a refusal upon count, presumptions all will trustee Eldred, settlement.” Roberts v. The case of 16], copart- Pac. which for dissolution of was a case nership of the books accounting, a condition disclosed pre- compelled preparation account such of books pared experts by the referee and employed who were kept imperfect which up books books were made kept by Speaking defendant case. books opinion, defendant, court, page said: 396 of on false, keep did “Many accounts he ought to given where credit not cases it refuge to take have will defendant been. It not do for referee behind result which books If the such these. correct, the record should court arrived at was not thing is appear. only have made the error The clearly the misconduct apparent beside record hopeless It in the acсounts. confusion defendant court below should eminently the action a case where disturbed.” not be
the said accounting considered and contention of appellants passed upon “the matters referee authority” scope cannot be sustained. of his within the specifying interlocutory decree They under the insist that respect to ac land in which the respective portions taking of limited referee to the count was to be made money pro simply account reporting evidence and shows that report of the referee sales. The ceeds from lands involved was based some valuations showing value of what the the referee taken before making the sales. the time of the the land was at put the dissolution defendants after sales made *20 plaintiff power settle deliver to on the of their to out property of his share partnership affairs o ment of only of de- appear methods and it would sold, Freeman v. termining plaintiff proper in those what was the interest of ties, through would deprived sale, of he was sale. making of the value thereof of the time determining As purposes to the evidence taken for of determining sold, province value these lands jurisdictiоn the valuations to be fixed was within the one conflicting court, the trial evidence. being it on based Appellants urge the court erred in allowing Had de credits were they entitled. response fendants, appeared plaintiff’s complaint, ac report action and their submitted answers dealings count of their and transactions on account partnership affairs, duty they do, itas was would so position complain then be of the action the trial court. they do, This but, contrary, did not on the denied any there adjudicate. were affairs to In relation contention of defendants that the neces- sary expenses by partners incurred in relation trustees management property care, entrusted to their they over which ordinarily control, had allowed proper cases, may applicable this rule said accountings cases of made honest faithful members of a copartnership. absolutely These defendants denied any under oath that had there ever been exist- ing plaintiff they between them and the maintained position during at all times the trial of this case filing until of their brief in time this court. From the the dissolution of the denied plaintiff had interest whatever in accounting. report expert included set appendix appellants’ opening forth brief shows exceptions expert’s report no taken to Deveny tract, profits $4,750.34, in which there were net plaintiff’s share $1,583.45, of which was Dixon tract property of on the which there was $509.43, due tract, the Watt in which was entitled to profits $1,177.54, of the Rice land plaintiff’s in which profits Kelly $424.00, share of was land in which profits $423.17, plaintiff’s Selby share lands plaintiff’s profits $1,238.89, in which share of and net transactions, from various plaintiff’s commissions of which profits plaintiff’s $917.98. Their share answer to *21 Oal. [65 Freeman Donohoe. v. having moneys complaint the denied plaintiff in their hands. any way an- present of an Having anything to in failed by complaint requiring plaintiff’s swer examination the court into transactions on behalf the defendants the amount partnership with which show the would the moneys they by should be expended them and with which charged any account, they in are not now the settlement position in a claim trial court error on behalf entitled, allowing they not which defendants credits to They not any which-they if were entitled. did there are opportunity offer themselves of the afforded to even avail order they produce by virtue of desired to they allowing evidence, if further further time to submit judge find- desired, so he directеd when made ings judgment in this case. There is no merit contehtion appellants judg judgment joint it is a erroneous because
ment based both defendants jointly defendants received which fails show that such responsible respect jointly for the amount or were showing judgment rendered. The matter was by defendants, received moneys were how the peculiarly disposition same, within amounts They part knowledge handled of the defendants. charge proceeds therefrom, had nership properties nothing accounts, do partnership had If partnership business. defend with function of its affairs be a settlement in this action ants desired adjudication they could have secured such tween themselves admitting rela through pleadings proper asking transactions setting forth the tion and sought by their only relief answer proper relief. complaint plaintiff’s prayer denied was, “that have whole the defendants ’’ costs. 134 Wis. Cornelius, of Eisentraut
The case defendants, 142], Am. cited Rep. N. W. St. contention, but, contrary, shows uphold does not along case was taken and followed procedure suggested. the lines above v. charge plain- contention trial court failed moneys chargeable
tiff with with properly he not sustained claim that аt evidence. Defendants the time of the dissolution there due from one $15,737.24 C. M. Wooster earned commissions the partnership and that defendants to collect this sued defendant, sum, making plaintiff party would because he join afterward, them with action. Plaintiff claim, compromised accepted the action $7,240.80 as a compromise. consideration Defend- action, paid moneys ants part dismissed *22 by received him to Donohoe, the defendant and a settlement adjudication finding moneys as to these is in contained XI No. As court. to whether the amount $15,737.24, by these commissions was as claimed $7,240.80, conflicting, or evidence was the statement (Exhibit 16) by made the defendant Donohoe to makes profits $9,000 as the estimate of in this in- matter $15,737.24. findings stead of applying rules Under the to of trial evidence, courts conflicting on be it cannot said the matter properly of the Wooster commissions not settled the trial court. judgment being
The claim that the is erroneous because joint judgment against both defendants and that moneys shows some included in the judgment were received alone one the defendants upheld. cannot Defendants, part- had they admitted the nership allegations in alleged by this appropriate action and separate them, in answers, dispute if there was a between joint agreed in or if balances answer moneys properties as in their might hands, settling have decree all obtained a the affairs partners. By between individual their denying a partnership they precluded answer the determin- ing of the liabilities of defendants and Barceloux Donohoe belong adjudged by each to the other. What is the decree properties partnership, is his share of custody determined be in the and control of both defend- ; they any pleading ants did not at the trial the action partner- the condition ask that the court determine ship moneys properties between Dono- the defendants as Barceloux; hoe and and if there exist differences [65 v. pro- regards these either those are matters settlement ceedings in this partnership properties are sold after the settling regarding any proceeds, be, if after there may be plaintiff’s judgment by any or such action proper Barceloux Donohoe between the defendants relating moneys in their hands. rendering aof proper
The rule for the as to when it is joint is partners suits clearly Buchanan, Or. stated Bloomfield partners : ordinary accounting Pаc. “In an 238] guilty where acts, neither is or conceal- omissions, of such trust, equitable duty, legal ments as involve a breach or injurious justly reposed, are confidence and which another, or which an advan- or unconscientious undue tage liability that each another, is taken the rule partner severally but liable to other account to each jointly. case in this But an examination of the evidence here. applied satisfied us could not be rule general partners, Whatever be the relations between developed fiduciary the facts make it case ap- principles applicable law relation must to that plied.” partners
In within this state trustees for other are each meaning chapter 1 of title Trusts contained obligations Code, the Civil such trustees *23 by chapter. defined responsible wrongful of co-
“A a trustee is acts the by negligence, consented, he which trustee or (Civ. no he enabled latter to commit, the but others.” Perry Birmingham v. 2239; Trusts, 848; Code, on sec. sec. Wilcox, 822].) 120 467 Cal. Pac. [52 firmly
“The settled that where a breach trust rule is more common has affected two or or all of cotrustees with a liability, jointly severally; is liable liable each they are due, and loss sustained or the whole for the whole amount against jointly may enforced a decree obtained them Jurispru (Pomeroy’s Equity them.” one 1081; Thompson, 101 Cal. dence, ed., 4th In re [35 sec. Ingersoll, 98]; Ins. & Trust 36 Pac. Title Co. v. Pac. 360].) Pac. 158 Cal. [111 created relation between As a trust the provisions the Civil Code hereinbefore set forth] Freeman v. argument appellants should have made court finding a is the defendants were constructive trustees without merit in in view of facts shown evidence this case. contention of appellants
guilty of such laches as should defeat his cannot attempts part sustained. The on discloses year bring for over a after the dissolution to about an amicable settlement affairs and divi properties; sion of its request report of written for a a writing affairs: of soon thereafter in Armstrong, defendant Donohoe W. who S. one charge Armstrong-Quatman Company, in San Fran cisco, letter as follows:
“Henry myself having difficulty some affect- ing adjustment Freeman, of our I affairs with and wish you giving anyone would refrain from or else concerning information past our transactions should apply you statements, way of oral written state- copies inspection papers ments or papers or you have”; generally absence the reasons for which the refusal of relief because laches is sometimes given equity. Delay bringing action is main urged by reason applying defendants for the doctrine laches.
“There is no artificial hard-and-fast rule either as lapse of time or the justify circumstances which will application of question the doctrine of laches. must be determined of all consideration the facts and circum particular fact, question stances case. Laches evidence, largely each case unto becomes a law words, reposes In itself. other matter one which (10 Jur., the sound discretion of chancellor.” 64.) sec.
Speaking application, rule of this and its is said large 43 Cal. “A Pratt, Pratt v. Pac. 956]: judge, disposition is confided discretion is, be, respect dis- appellate of an should and not to interfere with his cretion conclusion unless manifestly injustice has done.” In all been matters in- appeal volved in the determination questions *24 peculiarly presented within the hands of the trial Atkins Bouchbt. judge findings for the solution of and decree the facts. supported by introduced. presented appellants
No has sufficient reason been judgment action, appealed reversal of the judgment is, and said therefore, affirmed. J., Plummer,
Hart, J., concurred. A petition appellants have the cause heard ap- supreme court, court after district peal, supreme February 1924, was denied following opinion then rendered thereon: approve portion
THE COURT. We do opinion appeal court of herein which seems the district upon contract, regarded to hold that this action writ- obligation, liability founded instrument ing. conclusion of district We are satisfied with the appeal effect that the statute of limitations court of prescribed in applicable bar is the one the case at section Code of Civil Procedure. hearing by petition for this court transfer is denied. District, Appellate Two. Division 4634. First No.
[Civ. December 27, al., ATKINS, ANNA J. B. et Respondent, v. BOUCHET D. Appellants. Negligence—Pedestrian her umbrella Contributory completely cut off street, glanced held Negligence.—Where down to her waist neither to the and does not see the automobile that strikes Crossing right Street—Failure line pedestrian, nor to the her view while left, to Look- of traffic crossing with crossing street, to look for auto- pedestrian, before Duty of intersecting street, note, 9 A. L. R. 1248. approaching on mobiles duty operator pedestrian of automobile Reciprocal L, (N. S.) 669; 487; R. A. notes, 1916E, Ann. Cas. care, use (N. (N. S.) S.) 1178; A. 990. 51 L. R. L. A. R.