Brand v. Elledge

• Decision Date: 27 October 1966
• Docket Number: No. 7733,7733
• Citation: 101 Ariz. 352,419 P.2d 531
• Parties: Violet Rector BRAND, Appellant, v. Kaye A. ELLEDGE, Appellee.
• Court: Arizona Supreme Court

Page 531

419 P.2d 531

101 Ariz. 352

Violet Rector BRAND, Appellant, v. Kaye A. ELLEDGE, Appellee.

No. 7733.

Supreme Court of Arizona, In Banc.

Oct. 27, 1966.

Rehearing Denied Nov. 22, 1966.

Alan Philip Bayham, William R. Peterson, Phoenix, for appellant.

John P. Frank, John J. Flynn, Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, for appellee.

McFARLAND, Justice.

This is an appeal from a judgment of the Superior Court of Maricopa County finding in favor of the defendant, on remand directed by opinion of this court in Brand v. Elledge, 89 Ariz. 200, 360 P.2d 213. At that time we reversed a motion to dismiss granted by the trial court in favor of the defendant at the close of the plaintiff's case. The action was brought by Violet Rector Brand, hereinafter designated plaintiff, against Kaye A. Elledge, hereinafter designated defendant, for an accounting and dissolution of a partnership.

In the first trial the lower court 'dismissed the action upon defendant's motion on the ground that the partnership agreement was illegal and void'. In passing upon this question, we held, under the record before us at that time, that plaintiff and defendant had entered into a valid partnership agreement, and the defendant having plead the statute of limitations and laches, this court remanded the case and instructed the trial court 'to set aside the order of dismissal and permit the parties to present evidence on this question.'

However, the defendant, in the first case, had also plead that a partnership had not been entered into, and the motion to dismiss having been granted at the close of plaintiff's case, the court, in the second trial, properly permitted defendant to introduce testimony upon this issue. At the close of defendant's case, the trial court, in support of its judgment in favor of defendant, made findings of fact and conclusions of law, parts of which plaintiff complains on this appeal as follows:

'2. The money paid by the defendant for the down payment and for the remodeling was paid by the defendant with monies received by the defendant from her relatives and from the Valley National Bank. The balance of the purchase price was secured by a mortgage which was paid by the defendant.

'4. At no time was any money, goods or services contributed by the plaintiff to the defendant which was in any way connected with the purchase, remodeling or operation of the Happy Landings.

'5. A ficticious name certificate was recorded with the County Recorder of Maricopa County by the plaintiff and defendant, for the purpose of declaring plaintiff's interest in the name 'Happy Landings,' but no written or oral agreement of partnership was ever entered into between the plaintiff and the defendant.

'7. Personal loans were made by the plaintiff to the defendant, and were repaid by the defendant, but the plaintiff at no time made any capital contribution to the business or paid any sums for the acquisition of an interest in the business.

'10. Plaintiff continued to reside in Phoenix, Arizona from the date of the commencement of the operation of Happy Landings Tavern until February of 1945, at which time she returned to New York where she remained until 1949. Plaintiff returned to Phoenix for a short period of time in 1949, and then went to San Diego, California, where she married one John Brand, and resided in San Diego until 1951 when she returned to Phoenix, and remained in Phoenix until 1953. In 1953 the plaintiff accompanied her husband, who was a serviceman, to Tokyo, Japan, where she remained until the latter part of 1955. In 1955 she returned to Phoenix where she has resided until the present time. During this entire course of time until this action was filed in 1956, the plaintiff expressed no interest in the operation or management of the Happy Landings Tavern. She made no inquiries of defendant concerning the business welfare, operation, improvements or profits. She at no time was advised by the defendant concerning any of these matters.

'11. By virtue of the failure of the plaintiff to bring this action until some 15 years after the commencement of the operation of the Happy Landings Tavern, the defendant was prejudiced in the defense of this action, in that numerous witnesses who might have testified favorably for the defendant were deceased, or otherwise unavailable, and many of the records helpful to the defense of this action were lost or discarded.

'(5) No partnership relationship, express or implied, existed between the plaintiff and the defendant.

'(7) By reason of the plaintiff's delay in asserting her claim, the defendant has been placed in a disadvantageous position, whereby the ability of the court to do full justice to the parties has been substantially impaired, and therefore the plaintiff's claim, if any, is barred by laches.'

In the earlier opinion we found that:

'* * * the parties, at the suggestion of the defendant, went to the county recorder's office and signed and filed a certificate of partnership between themselves, reciting that they were doing business under the style and fictitious name of Happy Landings, located at 3815 South Central Avenue, Phoenix, Arizona. The certificate did not recite the terms of the copartnership.' 89 Ariz. at 201, 360 P.2d at 214

Defendant, in presenting her case, did not deny signing the agreement above referred to, nor did she claim any circumstances of fraud or misrepresentation surrounding its creation. The only explanation offered by the defendant was the following testimony:

'THE WITNESS: This Fictitious Name Certificate which, then as now, is to me what it certainly certifies at the heading of it as a Fictitious Name Certificate.

'At this particular time in New York City, which we were speaking of, Mrs. Rector, Otto Kretchmer and another gentleman had an occasion to visit a bar out of Jersey City, and there was a very attractive bar in there, and the decor was all of airplanes and various things like this, and we were discussing--I don't know--I am sure that Pat heard some of the conversation--and we were all discussing what a very good and cheap way it would be to use decor in a bar, and since I had spent so many years of my life in playing and working in a bar, I said I would like to have a bar some day, and because of the name and because of the cheap decor you could start something up very easily without too much expense.

'And Pat said, 'Well, gee, I sure would like to do that.'

'And I said, 'Well, so would I.'

'And when we were discussing the possibility of either one of us, not jointly, ever owning a bar, and it was about that time that I decided to come back to Arizona, and we had discussed the name of Happy Landings because it is a catchy name or was a catchy name, and I liked it, and Pat and I agreed--this happened before I even had any money or help in getting and acquiring the Broadway Inn--that whoever got a bar first they could use this name.

'Now, if Mrs. Rector had gotten a bar or had made an effort to get a bar, I wouldn't have argued with her about using the name 'Happy Landings.' I could have used any name.

'Q Did you ever have a conversation with her at the time this Fictitious Certificate was formed?

'A Yes.

'Q BY MR. FLYNN: When was the conversation, if you had a conversation?

'A We had several conversations.

'Q When were these--where were those--these conversations?

'A One was at her home, and they could have been in the LaLonie, could have been in the South Seas, could have been anywhere. We discussed the fictitious name being Happy Landings on several occasions.

'Q And what were the contents of these conversations?

'A That whoever got a bar first we'd like to copyright the name so that no one else would use it.

'Q And in relation to this particular certificate at the time it was executed, did you have a conversation with her about that particular fictitious name certificate?

'A Yes.

'Q And what was that conversation?

'A It was that they were going to copyright the name so no one else could use it as there was an airport on 16th Street and everything was all air-minded at this time, and it was a suggestion that we do copyright the name just to keep it as a name.

'MR. BAYHAM: May we have a statement as to who was present?

'Q BY MR. FLYNN: Was there anybody present at this time?

'A Yes.

'Q Who?

'A Chuck Newton.

'Q Is that the Chuck Newton who has previously testified?

'A Yes, sir.'

The testimony of C. V. Newton, referred to by defendant above, was as follows:

'Q Did you have occasion to have a conversation with Mrs. Brand and Miss Elledge concerning the name of the establishment?

'A I did.

'Q Where did this conversation take place, please?

'A They were talking about some stationery and name and so forth.

'Q And about when was that?

'A I think it was just about the time it opened up.

'I can't give you the date on it. I wouldn't know unless I had records to go back to.

'Q Would you say it was about the time it was opened up?

'A Right.

'Q Would you relate, Mr. Newton, to the best of your recollection, what the conversation was that you had at that time?

'MR. BAYHAM: Now, who was present in that conversation? Did I miss it?

'THE COURT: The plaintiff and defendant.

'Q BY MR. FLYNN: Who was present at the conversation?

'A Kaye Elledge, Mrs. Brand and myself.

'Q Would you relate, then, the conversation?

'A The conversation came up--they were going to put a name on it and call it 'Happy Landings.' They wanted some name to call it, so it wouldn't be called 'Joe's Place,' or something that way, and at the time due to all the influx of the military these places were springing up quite frequently around town.

'I said, 'If you have got a good name you better take care of it and protect it and go down and see about getting a copyright on it just to protect the name of the place.'

'That is all, the fictitious name for the establishment.

'Q At any time in your associations or conversations with Miss Elledge and Mrs. Brand and in your...