115 Cal. 326 | Cal. | 1896
On January 5, 1895, the defendant, Joseph E. Shain, commenced an action against William Binz and B. Martella upon their joint promissory note, signed “ Wm. Binz,” “ B. Martella,” and caused to be attached certain personal property belonging to a copartnership, of which they were the only members. On January 16, 1895, judgment was entered in the action that-he “ have and recover from B. Martella and William Binz, defendants,” the sum of fourteen hundred and ten dollars and sixty cents, as prayed for.
Under executions issued on both of the said judgments the plaintiff, Whelan, as sheriff, sold the said attached property for the sum of twelve hundred dollars, and after deducting his proper fees and charges, there was left in his hands the sum of one thousand and fifty-nine dollars.
Shain and Reid each claimed and demanded of the plaintiff that the proceeds of the said sale be applied in satisfaction of his judgment, and the plaintiff, being uncertain as to how the money should be applied, commenced this action, setting forth the facts, and asking that the defendants be required to interplead and set up their, respective rights to the money in his possession, and that the matter be determined by the court. And subsequently, with the consent of the parties and under an order of court, plaintiff paid the money into court.
The defendants answered the complaint, each setting up his claim and right to the money as against his co-defendant. Upon the issues thus framed the case was tried, it being admitted during the trial that the property sold was the partnership property of Binz and Martella.
The court found the facts and gave judgment in favor of defendant Reid, from which judgment and an order denying his motion for a new trial defendant Shain appeals.
The law is well settled in this state that partnership property must first be applied to the payment of partner
In his answer Shain alleged on his information and belief, in substance, that the note on which he obtained judgment was executed by Binz and Martella as copartners, and was a partnership contract and obligation, and that the money received thereon from the payee was invested and used in and about the partnership business and in furtherance of its objects. The court, however, found against him on this issue, to the effect that the said note was not executed by Binz and Martella as copartners, and was not a partnership obligation, and that the money obtained thereon was not invested or used in or about the said partnership business or in furtherance of its objects, “but that the obligation to pay said sum was the obligation of William Binz and L. Martella as individuals, and not otherwise.”
There was evidence tending to support this finding, but if it were otherwise, under the law laid down in Commercial Bank v. Mitchell, supra, the result would not be changed.
The court below was right, therefore, in adjudging
The judgment and order appealed from should be affirmed.
Searls, 0., and Haynes, 0., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
McFarland, J., Temple, J., Henshaw, J.