Endut v. Borodenko

• Decision Date: 02 March 1929
• Citation: Endut v. Borodenko, 109 Conn. 577, 145 A. 27 (Conn. 1929)
• Court: Connecticut Supreme Court
• Parties: ENDUT v. BORODENKO.

145 A. 27

109 Conn. 577

ENDUT v. BORODENKO.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from Superior Court, Fairfield County; Alfred C. Baldwin Judge.

Action by Mike Endut against Stanley Borodenko.From the judgment defendant appeals.Error, and case reversed and remanded with directions.

Action to wind up a partnership and for a receiver, in which the defendant filed a counterclaim to recover damages for an alleged breach of contract by the plaintiff, brought to the superior court in Fairfield county and tried to the court Baldwin, J., which found the issues of the complaint and counterclaim for the plaintiff and rendered judgment that the copartnership between the plaintiff and defendant be dissolved and that the plaintiff recover of the defendant $472.17 damages and costs, from which judgment the defendant appealed.Error; judgment directed for defendant upon the issues of the complaint and for the defendant upon the counterclaim, after hearing on the single issue of damages thereunder.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and BOOTH, JJ.

J. Moss Ives, of Danbury, for appellant.

Nathan G. Sachs, of New Haven, and Eli H. Millner, of Danbury, for appellee.

BOOTH J.(after stating the facts as above).

The appellant(defendant) has made no effort to correct the finding, but seeks to have reviewed the conclusions which the trial court drew from the subordinate facts found.

The question presented by the appeal is whether the conclusions of the trial court, either specifically set forth in the finding or necessarily involved in the judgment rendered and forming its essential basis, can legally or logically be drawn from the subordinate facts.

In his amended complaint, which contains two counts, the plaintiff alleged, in substance, that on or about October 5, 1926, he and the defendant formed a partnership for the purpose of conducting a restaurant and cafeteria at 24 White street, in Danbury, Conn., under the trade-name of the New York Cafeteria; that the agreement under which the partnership was formed was oral, by the terms of which the plaintiff was to contribute the use of $1,000 as capital; that the plaintiff and defendant were to co-operate in the care and labor of the business; that the plaintiff was to receive half the net profits, and, upon the dissolution of the partnership, he was to receive a repayment of the capital which he contributed, plus one-half the net profits; that pursuant to this agreement, the plaintiff and defendant, since October 5, 1926, conducted and operated this business as copartners, and that, by virtue of this agreement, the plaintiff contributed $800 in money, and rendered services of the agreed value of $360; that the plaintiff and defendant own a large and valuable stock of goods and a valuable good will; that the defendant excluded, evicted, and ejected the plaintiff from the business, and is in possession and control of all the partnership property; that there are unsettled copartnership claims and demands which require attention; that the firm property, in possession of the defendant, is liable to dissipation, injury, and waste; that the defendant wholly neglects to attend to the business of settling the firm's affairs; and that he had refused to pay the plaintiff the amount of his contribution to the business and his share of the profits.The plaintiff also alleged that he has expended moneys for attorney and accountant's fees in this action, and claimed, by way of relief, a dissolution of the partnership, the appointment of a receiver to liquidate all partnership assets, pay all partnership debts and the costs incident to this action, after which to divide the net proceeds between the parties, according to their respective rights; also reasonable sums for attorney and accountant's fees, $1,000 damages, and such other relief as law and equity both require.

The defendant in his answer to the amended complaint in effect denied all the allegations thereof, and affirmatively alleged that on October 11, 1926, the plaintiff agreed to purchase a one-half undivided interest in the restaurant then owned and operated solely by the defendant, and to pay therefor the sum of $1,500 within one week; that, upon the payment of $1,500 by the plaintiff, the parties were to then enter into a copartnership agreement, to be reduced to writing, whereby they would each share the profits and losses of the business equally; that the plaintiff failed and neglected to pay the $1,500 as agreed, although repeated demands were made upon him so to do by the defendant, and has...