Boner v. L. C. Fulenwider, Inc., 72--288

Citation513 P.2d 730,32 Colo.App. 440
Decision Date14 August 1973
Docket NumberNo. 72--288,72--288
PartiesJanet BONER et al., Plaintiffs-Appellees, v. L. C. FULENWIDER, INC., Defendant-Appellant. . II
CourtCourt of Appeals of Colorado

Berge, Martin & Clark, William G. Berge, Bruce D. Pringle, Denver, for plaintiffs-appellees.

Dayton Denious, William P. Denious, Denver, for defendant-appellant.

SMITH, Judge.

Defendant, L. C. Fulenwider, Inc., appeals from a judgment entered in favor of plaintiffs, Janet Boner, William Conter, Larry A. Malsam, C. Crady Davis, Lloyd E. Chamberlain, and Milo M. Jensen, in an action to recover damages for breach of a real estate syndication agreement.

On July 26, 1962, thirteen individuals and the defendant executed a written agreement creating the Myrtle Hill Park Syndicate. The purpose of the syndicate was to purchase certain real property and develop it into a shopping center. The agreement provided that each member of the syndicate was to make an initial capital contribution in return for which each member would receive a percentage interest in the venture equal to its portion of the total contributions. The total initial capital contributions from the members was to be $203,000. Pursuant to the agreement, defendant was to contribute $40,333, and receive 19.8% Interest. It was agreed that defendant would act as an agent for the syndicate in developing the property.

During the period that the syndicate was being created, defendant Fulenwider was in the process of assembling certain parcels of land in a nominee corporation. Subsequent to the formation of the syndicate, defendant, on behalf of the syndicate, purchased the property from the nominee corporation. As a result of this transaction, defendant charged the syndicate a $46,000 commission which defendant and three of its employees (also members of the joint venture) subsequently divided. Defendant credited $23,000 toward its initial capital contribution and the three employees each credited $7,666, toward their required contribution.

In 1964, the syndicate experienced difficulties in obtaining leasing commitments for the proposed shopping center, and, as a result, could not obtain financing for construction. Because of these difficulties, the members decided to sell the property and wind up the syndicate. The assets of the syndicate were subsequently distributed to the members of the syndicate in accordance with their respective percentage interest.

On September 7, 1966, plaintiffs brought this action alleging that the defendant had breached the real estate syndication agreement by receiving the $46,000 commission and by the unauthorized expenditure of funds in the development of the shopping center. Plaintiffs prayed for damages and an accounting. Trial of the case was to the court which at the close of plaintiffs' evidence dismissed the claim for an accounting and the claim concerning the unauthorized expenditure of funds. The trial court entered judgment in favor of plaintiffs on their remaining claim and awarded damages in the amount of $20,394. The defendant has appealed.

Defendant contends that the plaintiffs cannot maintain this action for damages because they failed to join all the members of the syndicate. Seven of the fourteen members of the syndicate were not joined as parties. Defendant asserts that plaintiffs, as individual members of the syndicate, cannot maintain an action for damages against another member unless there has been an accounting. This is a correct statement of the law applicable to a partnership. See Mumm v. Adam, 134 Colo. 493, 307 P.2d 797. However, the business association involved herein is a joint venture rather than a partnership. A joint venture is a special combination of two or more persons where, in some specific venture, a profit is jointly sought without any actual partnership or corporate designation. Edwards v. Harris, 397 P.2d 87 (Who.). The purpose of the syndicate was the single transaction of developing the shopping center. There was not a continuing association for business purposes. As such, the real estate syndicate constituted a joint venture. See Lasry v. Lederman, 147 Cal.App.2d 480, 305 P.2d 663; Lane v. Wood, 259 Mich. 266, 242 N.W. 909. Where a joint venture has been terminated, one member thereof may maintain an action for damages against another member without a formal accounting. Barlin v. Barlin, 145 Cal.App.2d 390, 302 P.2d 457; McCulloh v. Doyle, 40 N.M. 126, 55 P.2d 739. Although they have similar claims arising out of the same transaction, an action at law by one member of a joint venture against another may be brought without joining the other parties as plaintiffs, if the one member's right is distinct and separate from the others. See Beckwith v. Talbot, 2 Colo. 639. Here, plaintiffs brought this action to recover their respective shares of an ascertained sum. Under the circumstances, the action was properly maintained. Wetzberger v. McJunkin, 171 Okl. 528, 43 P.2d 729.

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3 cases
  • In re S & D Foods, Inc., Bankruptcy No. 89 B 06041 J
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
    • August 7, 1992
    ...199 Iowa 1337, 203 N.W. 787 (1925). Colorado has allowed a contribution action without a formal accounting. Boner v. L.C. Fulenwider, Inc., 32 Colo.App. 440, 513 P.2d 730, 732 (1973). See also, 68 C.J.S. Partnership, § 116 (1950); C.R.S. 7-60-134; 1 Colorado Methods of Practice, § 149 (Rev.......
  • Yoder v. Hooper
    • United States
    • Court of Appeals of Colorado
    • September 20, 1984
    ...for damages for breach of partnership obligations may not be maintained in the absence of an accounting, Boner v. L.C. Fulenwider, Inc., 32 Colo.App. 440, 513 P.2d 730 (1973), that rule does not apply where the plaintiff seeks specific equitable relief. 2 S. Rowley, Partnerships § 48.4 (2d ......
  • People v. McCain
    • United States
    • Supreme Court of Colorado
    • July 6, 1976
    ......160, 522 P.2d 737; Realty Co. v. Feit, 154 Colo. 44, 387 P.2d 898; Boner v. Fulenwider, Inc., 32 Colo.App. 440, 513 P.2d 730.         The ......

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