Burke v. Chrostowski
| Decision Date | 04 May 1956 |
| Docket Number | No. L,L |
| Citation | 46 Cal.2d 444,296 P.2d 545 |
| Court | California Supreme Court |
| Parties | Thomas BURKE and Doris Burke, Plaintiffs and Appellants, v. Stanley M. CHROSTOWSKI, Defendant and Respondent. A. 23979. |
Harry M. Irwin, Los Angeles, for appellants.
Joseph L. Graves, Monterey Park, for respondent.
Plaintiffs appeal from a judgment for defendant in an action between partners following the dissolution of the partnership. Their principal contention is that the evidence is insufficient to sustain the trial court's findings which resulted in the denial of their alleged claim of $2,500 upon settlement of the partnership affairs. In determining this question, it is well settled that Bancroft-Whitney Co. v. McHugh, 166 Cal. 140, 142, 134 P. 1157, 1158; also Patten & Davies Lbr. Co. v. McConville, 219 Cal. 161, 164, 25 P.2d 429.
In June, 1953, plaintiff Thomas Burke and defendant entered into an oral partnership for the operation of a restaurant business under the name of the El Adobe Coffee Shop in Monterey Park. They owned certain equipment therein, operated under a leasehold, had a checking account on which both signatures were required for the partnership checks, and they were to share equally in the business. There was no fixed term for the duration of the partnership. Prior to and on September 13, 1953, there were conversations between the partners about one buying out the other, but no agreement was reached. Then on the night of said date Burke disappeared with three days' unbanked cash receipts for the weekend, amounting to $550 or $600. Coincident with his departure, he sent to defendant an assignment of all assets and liabilities in the business 'in consideration of monies received and continued payment of one hundred dollars per week to my wife, Doris * * * for the period of twenty-five weeks or whatever arrangement she cares to make until the additional sum of $2,500.00 is reached or paid.' With such assignment, Burke enclosed a blank check on the partnership account signed by him, with a note stating:
Immediately after receiving the signed check, defendant used it to withdraw the balance in the partnership account, $1,887.19, closed that account, and deposited the money in a joint account with his wife. Thereafter he conducted all of the coffee shop business through such account, deposited some $2,000 of his own cash therein, and both he and his wife withdrew money therefrom for their personal needs. To clear his individual operation of the business, defendant promptly published a 'Notice of Dissolution of Partnership,' which declared that the parties had 'by mutual consent' dissolved and terminated the partnership on September 14, 1953; that in the future the business would be conducted by defendant, who would pay any discharge all liabilities and debts of the firm and receive all monies payable to the firm; and that thereafter defendant would not be responsible for any obligations incurred by Burke in his own or in the firm's name. The notice was dated September 18, 1953, and was published on September 24, 1953. A few weeks later defendant had the partnership accounts and deposits with the utilities and the board of equalization, which had been made to establish credit and to carry on the partnership business, transferred to his own name.
Burke returned a week or ten days after his departure, but meanwhile his wife had not known of his whereabouts. He made no claim then nor since to the business or any partnership funds. Burke's only demand was that defendant pay $2,500 to his wife Doris, relying on defendant's acts in taking over the business as an acceptance of his (Burke's) offer to dissolve the partnership on the terms proposed by Burke. Following a second demand made on September 30, 1953, and defendant's repeated denial that any contract to pay this sum existed, the Burkes brought this action claiming that defendant was liable on the alleged contract. Defendant filed an answer and a cross-complaint, alleging that there was no contract; that Burke had withdrawn from the partnership; that defendant had published the Notice of Dissolution 'to forestall further actions of (Burke) * * * having adverse effect on said restaurant business'; that an audit had been made and a copy thereof given to plaintiffs accounting for the operation of the business through September 13, 1953, which statement showed that Burke owed the partnership $802.56 and to which plaintiffs made no objection; and that plaintiffs were estopped by the conduct of Burke from claiming any right, title or interest in the increase in net worth of the business since September 14, 1953.
The trial court found that there was no contract to pay the $2,500 claimed by plaintiffs, although defendant on September 14, 1953, took possession of the equipment, merchandise, cash, credits and business of the coffee shop and has operated the business since that date. Judgment was for defendant on the complaint, but that he take nothing on his cross-complaint.
Plaintiffs' appeal presents the single question of whether defendant's acts in taking over the business, under the circumstances above related, created a contract between the partners, and obligated defendant to pay the sum of $2,500 to Doris Burke. The theories of plaintiffs ...
To continue reading
Request your trial
-
Alfred M. Lewis, Inc. v. Warehousemen, Teamsters, Chauffeurs and Helpers Local Union No. 542
...accept as true all evidence and all inferences which reasonably may be drawn therefrom tending to support that finding. Burke v. Chrostowski, 46 Cal.2d 444, 296 P.2d 545. There is no direct evidence of an agreement between the Union and the Association to restrict competition, as set forth ......
-
City of Salinas v. Souza & McCue Const. Co.
...well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion" (Burke v. Chrostowski (1956) 46 Cal.2d 444, 445, 296 P.2d 545), in the instant case the evidence introduced by Souza must be deemed As to the actual damages, the trial court dete......
-
Burke v. Bloom
...Berniker, 30 Cal.2d 439, 182 P.2d 557); all reasonable inferences are indulged in favor of the findings and judgment (Burke v. Chrostowski, 46 Cal.2d 444, 296 P.2d 545; McCarthy v. Tally, 46 Cal.2d 577, 297 P.2d 981) and the evidence must be viewed in the light most favorable to the respond......
-
Stewart v. Wahlstrom Bros., Inc.
...v. Antoyan, 48 Cal.2d 805, 313 P.2d 848) and resolve all reasonable inferences in favor of the finding and judgment. Burke v. Chrostowski, 46 Cal.2d 444, 296 P.2d 545; McCarthy v. Tally, 46 Cal.2d 577, 297 P.2d 981; McCreary v. Mercury Lumber Distributors, 124 Cal.App.2d 477, 268 P.2d 762. ......