Crabbe v. Mires

• Citation: 246 P.2d 991,112 Cal.App.2d 456
• Court: California Court of Appeals
• Decision Date: 30 July 1952
• Parties: CRABBE v. MIRES et al. Civ. 8127.

Page 991

246 P.2d 991

112 Cal.App.2d 456

CRABBE v. MIRES et al.

Civ. 8127.

District Court of Appeal, Third District, California.

July 30, 1952.

John G. Evans, San Francisco, for appellants.

Carr & Kennedy, Redding, for respondent.

SCHOTTKY, Justice pro tem.

Plaintiff commenced an action to recover for certain equipment and dredging supplies delivered to and used by a gold mining dredge operated in Trinity County. The action was against defendants individually and also against defendants doing business as Crescent Gold Dredging Co., a copartnership. Plaintiff's complaint contained three causes of action. The first was for the reasonable value of goods sold and delivered to defendants as actual partners and also as ostensible partners; the second was upon an open book account; and the third was upon an oral contract. Only the defendants Lynn and Rising have appealed from said judgment.

The facts in the instant case are quite similar to those involved in Gerlinger Foundry & Machine Works, Inc. v. Crescent Gold Dredging Co., 108 Cal.App.2d 185, 238 P.2d 608 (hearing denied) and McKee v. Mires, 110 Cal.App.2d 517, 242 P.2d 954, both decided recently by this Court. Appellants refer to these cases in their brief and state that:

'The factual situations are almost identical and many of the legal issues therein are involved in the present appeal, as all three cases stem out of the operation of said mining claims and dredge by the defendants Mires and Garner.'

The principal contention of appellants is that the findings and judgment are not supported by the evidence either upon the theory of actual partnership or ostensible partnership. The Court not only found that appellants were copartners with defendants Mires and Garner in the operation of said dredge but also found that all of said defendants 'by their spoken and written words and conduct represented themselves and consented to each other representing themselves to various creditors and to plaintiff as partners in an existing partnership, and in reliance thereon plaintiff, on the faith of such representations gave credit to Roy Mires, J. H. Garner, Wallace Lynn and Stanley Rising under the belief that there was an actual and apparent partnership, and it is further true that said representations was made and consented to be made by all of said defendants in a public manner.'

We have read the record carefully and, bearing in mind the familiar rule that when a judgment is attacked as being unsupported by the evidence the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusions reached by the trial court, we are satisfied that the record amply supports the judgment.

The testimony of plaintiff, concerning the sale, is that Mires made the credit arrangements with him; stating they had new capital put up by Lynn and Rising to enable the dredge to be repaired and operations continued; that Mires stated there would be a new company by the name of Crescent Gold Dredging Co. formed, but did not specify the form of organization thereof (corporation or partnership).

There was no specific representation this company was already in existence, the plaintiff testifying he apparently assumed it was in view of the deposit being in the name of the Crescent Gold Dredging Co. Concerning his telephonic inquiry of the Anglo Bank in San Francisco, for the credit information he was interested in, to wit, the money available to pay for Mires' proposed purchase, plaintiff told the bank's agent, DeMartin, that he was about to give $1,000 credit to Crescent Gold Dredging Co. and DeMartin told him that there was a substantial sum on deposit to that account and that in his (DeMartin's) opinion it was a safe risk.

Appellant Rising testified that Lynn had authorized Mires to make purchases within limitations; Lynn stated he was active in arranging the details of transferring the Mires and Garner gold license to the Crescent Gold Dredging Co.; Lynn purchased a tank for the dredging operations; Rising personally went to Redding to arrange credit with Standard Oil and Orris McKee, a fuel dealer; and Mires received a letter from the appellants stating they no longer would be responsible for any debts of the dredging deal.

We believe that the following language of the Court in Bedell v. Morris, 63 Cal.App. 453 at page 455, 218 P. 769, at page 770, is applicable:

'* * * Representations or acts need not be actuated by the actual intent to deceive; it is sufficient if the course of conduct is such as to induce a reasonable and prudent man to believe that which the conduct would imply. The proposition is well supported by decisions and learned text-writers. Seymour v. Oelrichs, 156 Cal. 782, 166 P. 88, 134 Am.St.Rep. 154; Carpy v. Dowdell, 115 Cal. 677, 47 P. 695; Dickerson v. Colgrove, 100 U.S. 580, 25 L.Ed. 618 [see, also, Rose's U.S. Notes]; 2 Pomeroy's Equity Juris. (4th Ed.) p. 1645. It does not seem to be questioned but that James and Rueger [plaintiff's assignors] extended further credit to the company in view of the fact that Jacob C. Morris was identified with the business. They so testified, and we have nothing in contradiction thereof. This being so, the only question remaining is whether or not the acts...