246 P. 134 | Cal. Ct. App. | 1926
Action for an accounting. Plaintiff had judgment against the defendant for $300. Defendant appeals.
[1] On or about the seventh day of February, 1921, pursuant to an agreement relative to the purchase and sale of an interest in a certain laundry business conducted in the city of Fresno, county of Fresno, state of California, the defendant executed and delivered to the plaintiff an instrument in writing, of which the following is a true copy:
"February 7th, 1921.
"Received of Henry Hauret the sum of Four Hundred ($400.00) Dollars on account of the sum of Twelve Hundred ($1200.00) Dollars, which said latter sum is the full purchase price of an undivided one half (1/2) interest in *189 and to that certain business known as the `Parisian Laundry' in the City of Fresno, County of Fresno, State of California, together with a one half (1/2) interest in and to all the property, lease-hold interest and good will of said business; the balance of Eight Hundred ($800.00) Dollars payable on or before September 1st, 1921.
"It is understood and agreed by the parties hereto that the said Henry Hauret may, at his option, withdraw from the purchase of the business and property aforesaid, and that if in the event he so desires to withdraw therefrom, the above said Four Hundred ($400.00) Dollars will be returned to him without any deduction.
"Upon the payment of the aforesaid Eight Hundred ($800.00) Dollars, the undersigned will deliver to the said Henry Hauret a bill of sale to the one half (1/2) interest as aforesaid.
"V. PEDELABORDE."
At the time of the execution and delivery of said writing the plaintiff paid to the defendant the sum of $400 mentioned therein. Immediately after the execution and delivery of said writing and the payment by the plaintiff to the defendant of said sum of $400, the plaintiff and the defendant began and continued until on or about the first day of May, 1921, to conduct the laundry business mentioned in said writing. The court found that the plaintiff and defendant conducted said business during said period of time as partners. The writing referred to is silent as to any division of profits, or as to the manner in which the business should be conducted, nor has our attention been called to any testimony showing any specific agreement as to the division of profits and losses. The testimony does show that at the expiration of every week during the period of time when the plaintiff and defendant were engaged in the conduct of said laundry business, the cash receipts, after deducting the expenses of the enterprise, were equally divided between the plaintiff and the defendant. The absence of anything in the writing on this subject is wholly immaterial. As said in 20 Cal. Jur., page 692, section 11, "An agreement to divide profits and losses is imported by every agreement of partnership, independently of any stipulation in this respect by the parties to the relationship," and as said in Duryea v. Burt, *190
The court did not err in holding that the plaintiff was entitled to an accounting, as that would necessarily follow from the relationship constituting the partnership or a joint enterprise. Upon the termination of the business relation between the plaintiff and the defendant on the first day of May, 1921, the defendant returned to the plaintiff the $400 mentioned in the writing hereinbefore set forth, and the controversy now relates only to a settlement of accounts appearing on the books kept of the business conducted by the plaintiff and defendant during the continuance of their business relations.
[4] The main reason urged by appellant for reversal herein is that the record contains no testimony supporting finding number 12, which finding is as follows: "The court further finds from the evidence and the stipulation made in open court by the attorneys representing the respective parties, that the receipts from February first to May first, during the year 1921, exceeded all expenditures and liabilities incurred during said period, by the sum of six hundred dollars and eighty-five cents ($600.85)." There is nothing in the reporter's notes, certified by the judge of the trial *191
court to be correct, showing what the stipulations referred to in the finding may have been or that there were, in fact, any such stipulations. It is true that in the clerk's transcript included with the papers constituting the judgment-roll, as provided by section
Hart, J., and Finch, P.J., concurred. *193