Pico v. Cuyas

47 Cal. 174 | Cal. | 1873

By the Court, Niles, J.:

Several of the original findings of the Court, and most of the additional findings made at the request of plaintiff’s counsel, and to which much of their argument is addressed, are obnoxious to the objection that they are merely statements of the evidence upon which the findings of fact were , based. It has been repeatedly held that a finding of the Court cannot be impeached upon the ground that it is contrary to the evidence, otherwise than by a motion for a new . trial, and statement of evidence upon the motion. We can consider, upon appeal from the judgment, only the ultimate facts found by the Court, and not the probative facts, which have no proper place in the findings.

The execution and delivery of the lease by the plaintiff to the defendant are admitted by the pleadings. By its provisions the term was to commence on the fifteenth day after the delivery 'of the keys of the house by the plaintiff to the defendant, and was to continue for ten years. It appears from the findings, that subsequent to the execution and delivery of the lease, and prior to any delivery of the keys to the defendant,’ the plaintiff and defendant entered into negotiations for the formation of a partnership in the business of hotel-keeping, which, by the proposed terms, was to commence on the opening of the hotel to the public, and was to continue for .the term of five years thereafter, under the firm name of Cuyas & Co.; the rent of the property to be paid by the partnership, and the profits and losses to be divided in certain proportions. Subsequently, but before any contract of partnership had been concluded, the defendant received ’ the keys of the house from the building contractor, and three days thereafter opened the hotel to the public under the firm name of Cuyas & Co.. Still later, but at what precise time does not appear, the plaintiff “ ac-' cepted, assented to, and entered into the partnership with the defendant, as the result of their negotiations, * * * and acted on the same as commencing from the day the hotel was opened to the public.” No written contract of partnership was made, but the partnership business was conducted upon the terms agreed upon, during the period for which rent is demanded.

At the trial plaintiff moved to strike out all evidence of the partnership agreement, upon the ground that the contract was not by its terms to be performed within one year from its date, and not being in writing, was within the prohibition of the twelfth section of the Statute of Frauds. 'Without considering the question whether a partnership agreement of this character is within the purview of the statute, it is a sufficient answer to the objection that the contract was partly performed. The partnership was entered into and the business conducted in the firm name. Under the well settled rule of construction of this clause of the statute, neither party can avoid the obligation of the contract as to past transactions under it.

Nor do we think that the effect of the contract proven was to change or modify the terms of the lease, or to work a surrender of it. The two contracts are entirely separate and distinct. It was competent for the plaintiff, after the execution of the lease, to enter into a contract of partnership with the defendant in the business of hotel keeping, and to agree that the rent of the hotel should be a charge upon the firm. He remained the lessor and his claim for rent continued, but by an independent contract, which was entirely disconnected from the lease, he obligated himself to “sustain as a partner his proportion of the charge for rent,” as of other charges against the firm. It is the result of this contract, that so long as the partnership continues, he can receive the rent only from the net profits of the concern ; and these cannot be ascertained otherwise than by a partnership accounting.

The exceptions to the admission of the depositions of Galtez and Weeks were not well taken. The testimony was directed to proof of the partnership, and in this respect there was no material difference between the issues made by the original and those made by the amended answers.

We find no error in the record.

Judgment affirmed.

Mr. Ohief Justice Wallace did not express an opinion.