176 P. 54 | Cal. Ct. App. | 1918
Plaintiff, alleging the existence of an agreement of copartnership between himself and defendants, under and pursuant to which certain described land was purchased by defendants, asked for a decree establishing the existence of such copartnership and for incidental equitable relief.
The court found that the partnership agreement was made as alleged, and that by virtue of the relationship and agreement so made between the parties, plaintiff was entitled to a one-eleventh interest in the unsold property and in the net proceeds of that which had been sold, subject to certain liens and charges established against the same, and entered a decree in accordance therewith.
The appeal is from the judgment and an order of court denying defendants' motion for a new trial, in support of which a bill of exceptions is presented.
Appellants' chief contention, and that to which their voluminous brief is almost entirely devoted, is that the finding that the copartnership agreement was entered into under which the property was acquired and plaintiff entitled to such interest in the land, is unsupported by the evidence. While as to this alleged agreement the evidence is sharply conflicting, that given on behalf of plaintiff, and which the court found to be true, clearly tends to show that prior to the acquisition of the property plaintiff and defendants entered into an agreement contemplating the purchase, for resale and speculation therein, of what was known as industrial property; that is, property which by reason of its location with relation to railroads was adapted to manufacturing purposes; that for some time prior to the making of this agreement plaintiff had been engaged in acquiring such property for the Southern Pacific Company, by reason of which fact he was in *236
possession of much valuable expert knowledge and information, on account of which it was agreed that he should not be required to furnish any part of the copartnership capital, but that his knowledge, counsel, and advice should constitute his share thereof. Some months thereafter, and after considering a number of pieces of property and advising with plaintiff, it was finally agreed to purchase the property in question, title to which was to be in the name of Johnston for the benefit of the copartners, who were to share equally in the profits derived therefrom. The first payment made upon the property was twenty-two thousand dollars, upon the making of which the title was taken in the name of Johnston, who thereafter, without plaintiff's knowledge, conveyed it to the Title Insurance
Trust Company, in trust, which company, as evidence of the trust and interest therein, issued four certificates, one of which, issued in the name of H. B. Smith, was for a two twenty-seconds interest in the property, which certificate is conceded by defendants to have represented the interest of plaintiff in said property. Notwithstanding plaintiff's contention that he was by the terms of the agreement not required to contribute any money toward carrying out the enterprise, it seems that defendant Johnston, some time after the purchase, called upon him and suggested that inasmuch as Mr. Smith was carrying his part of the burden, the latter desired as an evidence of good faith on his part that he should give him a note for two thousand dollars, at the time stating that he would not be called upon for the payment thereof. Plaintiff gave the note as requested and this note was at all times retained by defendants and produced at the trial, and defendants at all times retained possession of the certificate for a two twenty-seconds interest in the property for which, according to their testimony, the note was given. At the time of the purchase, real estate of the character purchased was quite active in the vicinity of Los Angeles, and it was believed by all parties concerned that a quick turn thereof would be made at a profit. In 1907, however, there was a cessation of such activity and the carrying of the property became a burden, which it appears was assumed by defendant H. B. Smith. At no time was plaintiff called upon to contribute anything toward the carrying charges, nor the payment of the note. That an agreement was entered into to form a partnership for the purchase of property, the parties thereto to share in *237
the profits, the consideration of which, so far as plaintiff was concerned, was his knowledge, counsel, and advice, and that thereafter the parties joined in selecting for purchase and did, in accordance with the agreement to share in the profits of the joint adventure, acquire in the name of Johnston the property in question, clearly appears from the evidence offered by plaintiff. That the undissolved relationship and transaction had thereunder entitled plaintiff to relief, is supported byKoyer v. Willmon,
Thus viewed, appellants insist that any right of action on the part of plaintiff would be obnoxious, not only to the statute of frauds, but to the statute of limitations. In reply to this we may say that the statute of frauds does not prevent parol proof for the purpose of showing an interest in the profits to be derived from the sale of lands, but declares that an agreement by which an estate or interest in lands is to be created must be in writing. (Bates v. Babcock, supra.) To the same effect are Doudell v. Shoo, supra, and Bond v.Taylor,
We deem it unnecessary to notice a number of alleged errors predicated upon rulings of the court in the admission and rejection of evidence. As appellants in their brief say, these are minor matters, and an examination of them shows that, under our view of the case, they could in no event have prejudiced the substantial rights of defendants. In this connection, suffice it to say that the record, taken as a whole, shows the case to be one for the application of section 4 1/2 of *239 article VI of the constitution, and, conceding the existence of technical errors, they have not resulted in a miscarriage of justice; and, conceding, further, a conflict in the evidence and inconsistencies in the testimony of plaintiff himself, it was the duty of the court, so far as possible, to reconcile such conflicts and inconsistencies, and in determining the weight thereof it might accept plaintiff's evidence in part and discredit it in part.
The judgment and order are affirmed.
Conrey, P. J., and James, J., concurred.