Epperson v. Rosemond
| Decision Date | 09 November 1950 |
| Citation | 100 Cal.App.2d 344,223 P.2d 655 |
| Court | California Court of Appeals Court of Appeals |
| Parties | EPPERSON v. ROSEMOND et al. Civ. 14498. |
Joseph A. Garry, Cyril F. Marelia and Melvin, Faulkner, Sheehan & Wiseman, all of San Francisco, for appellants.
C. D. Dorn, San Francisco, for respondent.
In an action for a partnership accounting plaintiff, widow of the decedent Charles A. Epperson, as administratrix of his estate, had judgment against the appellants as surviving partners for $61,772.98.
Decedent and appellants were stockholders in a corporation engaged in the manufacture of bus bodies. The corporate form was abandoned on December 29, 1943 and a partnership agreement was substituted which provided that decedent should receive 20 per cent of the profits. Decedent suffered a stroke of paralysis which kept him from participating in the business and on May 22, 1944 the parties executed a supplemental agreement which provided that from May 1, 1944 until decedent 'shall return to active participation in the partnership affairs' the profits and losses of the business were not to accrue to the benefit or detriment of decedent. The adjustment of accounts and profits as of May 1, 1944 showed decedent's share to be $6,669.56.
Decedent returned to work in the business on September 15, 1944 and continued until his death in February, 1948. The evidence was conflicting as to the character and extent of his business activities during that period. The court found that 'on said September 15, 1944 he again became an active participant in the partnership affairs, and continued said active participation to the date of his death * * *.'
It is not argued that the evidence does not support this finding. Instead appellants argue that, by his conduct in accepting only a drawing account during that period without receiving any share of the profits as such and by his signature to an audit prepared in 1947 showing only $6,669.56 to the credit of decedent, the court should have found that decedent's claim was barred: 1. by laches; 2. by estoppel; and 3. by an account stated.
The trial court made no finding on any of these issues nor was it called upon to do so. All three are affirmative defenses which must be pleaded in the answer. '(L)aches is a defense, and not a condition of relief, and, if it does not appear on the face of the complaint, must be affirmatively pleaded and proven by the defendants.' Victor Oil Co. v. Drum, 184 Cal. 226, 243, 193 P. 243, 250; Lucci v. United Credit & Collection Co., 220 Cal. 492, 497, 31 P.2d 369; Ellis v. Union Trust Company, 219 Cal. 50, 53, 25 P.2d 1; Ryan v. Welte, 87 Cal.App.2d 897, 905, 198 P.2d 357; Katz v. Enos, 68 Cal.App.2d 266, 276, 156 P.2d 461; Lotts v. Board of Park Com'rs., 13 Cal.App.2d 625, 636, 57 P.2d 215. 'The rule is well established in this state that an estoppel, to be available, must be specially pleaded.' Holzer v. Read, 216 Cal. 119, 124, 13 P.2d 697, 699; Lucci v. United Credit & Collection Co., supra; Promis v. Duke, 208 Cal. 420, 426, 281 P. 613; Producers' Holding Co. v. Hill, 201 Cal. 204, 209, 256 P. 207; Christian v. California Bank, 93 Cal.App.2d 230, 234, 208 P.2d 784; Edgington v. Security-First Nat. Bank, 78 Cal.App.2d 849, 857, 179 P.2d 640. Vaughan v. County of Tulare, 56 Cal.App. 261, 269, 205 P. 21, 24; Miracle v. Barker, 59 Wyo. 92, 136 P.2d 678, 683; Reinhart & Donovan Co. v. Williamson, 191 Okl. 539, 131 P.2d 765, 766.
The defense actually asserted in the answer is the making of the supplemental agreement and 'that the disability of said C. A. Epperson continued and he remained as an inactive partner from May 1, 1944 to and including the date of his death on February, 1948 * * *.' The court...
To continue reading
Request your trial
-
San Bernardino Valley Audubon Society v. City of Moreno Valley
...facts. The City did plead the defense As a general rule, laches must be pleaded as an affirmative defense. (Epperson v. Rosemond (1950) 100 Cal.App.2d 344, 345, 223 P.2d 655, 656.) However, courts in extraordinary cases have denied relief on their own motion when laches is disclosed by the ......
-
Johnson v. Ocean Shore Railroad Co.
...to be an issue by the pretrial order. It is not an issue. (Krupp v. Mullen, 120 Cal.App.2d 53, 56, 260 P.2d 629; Epperson v. Rosemond, 100 Cal.App.2d 344, 345, 223 P.2d 655. Finally, appellant claims title by adverse possession. Where possession and use is permissive at the beginning, one c......
-
Traders & General Ins. Co. v. Pacific Employers Ins. Co.
...on a petition for rehearing. Dougherty v. Henarie, 49 Cal. 686; Prince v. Hill, 170 Cal. 192, 195, 149 P. 578; Epperson v. Rosemond, 100 Cal.App.2d 344, 348, 223 P.2d 655, 224 P.2d 480. Criticism of the practice of raising new points in petitions for rehearing was expressed by the Supreme C......
-
Craycroft's Estate, In re
...may not recover from the surviving partners any greater amount regardless of the actual value of that interest (Epperson v. Rosemond, 100 Cal.App.2d 344, 346, 223 P.2d 655, 224 P.2d 480), the respondents, the son and daughter, claim that the estate of their mother is entitled only to the va......