DeSantis v. Dixon, No. 4973

• Court: Supreme Court of Arizona
• Writing for the Court: UDALL
• Citation: 72 Ariz. 345,44 A.L.R.2d 513,236 P.2d 38
• Parties: , 44 A.L.R.2d 513 DE SANTIS v. DIXON.
• Docket Number: No. 4973
• Decision Date: 01 October 1951

Page 38

236 P.2d 38 72 Ariz. 345, 44 A.L.R.2d 513 DE SANTIS
v.
DIXON. No. 4973. Supreme Court of Arizona. Oct. 1, 1951.

[72 Ariz. 346]

Page 39

W. H. Quesnel (now deceased), and Laurence Davis of Tucson, for appellant.

Darnell, Robertson & Holesapple and Clarence V. Perrin, all of Tucson, for appellee.

MURRY, Superior Court Judge.

This is an action by one partner, Joe DeSantis, plaintiff below and appellant herein, against the other partner, Bruce B. Dixon, defendant and appellee, for an accounting and dissolution of partnership, for temporary injunction, for appointment of receiver and for damages, to which the defendant answered and counterclaimed. For convenience we will refer to the parties as they were designated in the trial court.

The case was tried to the court without a jury. During the trial all factual questions were settled by stipulation of the parties (which stipulation was approved by the court), except the question of title to certain[72 Ariz. 347] real property and whether any rental liability was owed by the partnership to the defendant for the use of the said property. Plaintiff claimed the real estate was partnership property, while the defendant asserted that it was his separate property.

Judgment was rendered against the plaintiff on the complaint and for the defendant on the counterclaim, quieting title in the defendant to the following described property: Lots Nine (9) and Twelve (12) in Block 256 of the City of Tucson, Pima County, Arizona. Also known as 137 S. 6th Avenue, Tucson, Arizona. Defendant was also awarded rent on said premises in the sum of eleven hundred dollars and costs. This appeal followed.

The material facts briefly summarized are as follows: In 1942 an indefinite oral agreement of partnership was entered into between the plaintiff and defendant for the buying and selling of used cars, under the firm name of Dixon-DeSantis Motor Co.

In the early summer of 1943 the location where the partners were doing business was sold and they were informed that they would not be able to renew their lease in the fall. The necessity of moving was the prime factor leading to the acquisition of the property in dispute. There is a sharp conflict in the testimony concerning the negotiations for the purchase of the property in question, which will be discussed in detail later. The evidence as to the conduct of the parties and their method of bookkeeping as to the property after it was conveyed to the defendant is also conflicting. But the undisputed facts are that the two lots were purchased with the defendant's funds for $24,500, $12,500 being paid in cash and a mortgage executed by the defendant for the balance. Title was taken in the name of the defendant only. In due course the business was moved to these lots and an option was granted by the defendant to the plaintiff, giving plaintiff the right to buy the entire property upon the death of the defendant, on the condition the defendant had not already sold it.

Plaintiff makes the following four assignments of error:

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1. The trial court erred in holding that the purchase by one partner, with his own funds, of a vacant piece of real estate for the use of the partnership did not bear such relation to the firm business to hold the purchasing partner a constructive trustee for the firm.

2. The trial court erred in finding the option agreement was almost conclusive evidence that on that date both parties conceded the defendant owned the lots in question.

3. The trial court erred in finding there was rent due the defendant from the firm.

4. The trial court erred in finding there was no evidence that the defendant's capital account was credited with the cash payment made on the lots or that there was no evidence the down payment was entered [72 Ariz. 348] as having been paid by the partnership.

We shall dispose of the last three assignments of error first, as they are concerned with the evidence in the case. The learned trial court, in referring to the option agreement stated: '* * * it appears to us to be almost conclusive evidence that on that date (date the option was...