Gerlinger Foundry & Mach. Works v. Crescent Gold Dredging Co.

• Decision Date: 12 December 1951
• Citation: 108 Cal.App.2d 185,238 P.2d 608
• Parties: GERLINGER FOUNDRY & MACHINE WORKS, Inc. v. CRESCENT GOLD DREDGING CO. et al. Civ. 8039.
• Court: California Court of Appeals Court of Appeals

Page 608

238 P.2d 608

108 Cal.App.2d 185

GERLINGER FOUNDRY & MACHINE WORKS, Inc. v. CRESCENT GOLD DREDGING CO. et al.

Civ. 8039.

District Court of Appeal, Third District, California.

Dec. 12, 1951.

Rehearing Denied Dec. 27, 1951.

Hearing Denied Feb. 7, 1952.

John G. Evans, San Francisco, Hiram R. Baker, Redding, for appellants.

Matthew E. Marsh, Chico, for respondent.

SCHOTTKY, Justice pro tem.

Plaintiff and respondent brought an action against Crescent Gold Dredging Company, a copartnership, Roy Mires, Joseph H. Garner, Wallace R. Lynn and J. Stanley Rising to recover the sum of $898.60, setting up six counts in its amended complaint.

In Count 1 it was alleged that defendant Crescent Gold Dredging Company was a copartnership; that the above-named defendants were copartners doing business under that name; that within four years last past said defendants became indebted to plaintiff in the sum of $898.60 upon an open book account for merchandise sold and delivered to defendants. Count 2 was the same as Count 1 except that it was alleged that the reasonable value of the merchandise was $898.60. Count 3 alleged that all four defendants were jointly associated in a common enterprise for profit, to-wit, certain gold dredging operations at or near Coffee Creek, Trinity County, and became indebted to plaintiff in said sum of $898.60 for goods, wares and merchandise sold and delivered as aforesaid, no part of which has been paid. Count 4 was the same as Count 3, except that it alleged the reasonable value to be $898.60. Count 5 alleged that appellants Lynn and Rising, 'by words spoken by them and through their agents, represented themselves, and by their conduct consent to the defendants Roy Mires and Joseph H. Garner representing them * * * to plaintiff, as partners in an existing or apparent partnership, to-wit, Crescent Gold Dredging Company; and plaintiff, on the faith of such conduct and representations, gave credit to said Crescent Gold Dredging Company in the sum of Eight Hundred Ninety-eight and 60/100 ($898.60) Dollars * * * between the 19th of September, 1949, and the 8th day of November, 1949 * * *'; that defendants promised to pay plaintiff said $898.60, but no part thereof has been paid. Count 6 was the same as Count 5 and alleged that $898.60 was the reasonable value.

Defendants Mires and Garner filed no answer to the amended complaint, but defendants Lynn and Rising filed an answer denying all of the material allegations of the amended complaint and denying any indebtedness to plaintiff.

The trial court found:

'That in the months of October and November, 1949, defendants Roy Mires and Joseph H. Garner, copartners then doing business under the name of Crescent Gold Dredging Company, did through the words and acts of said Mires, of their general agent Thomas, and of their special agent Donaldson, order, purchase and take delivery of certain machinery and parts sold by plaintiff, which merchandise was of the reasonable value of $898.60.

'That at no time did defendants Wallace R. Lynn and J. Stanley Rising in fact become or ostensibly appear to be partners of defendants Mires and Garner.

'That defendants Lynn and Rising, as joint venturers between themselves, agreed to furnish money for the operations of Mires and Garner, as appears by their agreement of October 18, 1949; that defendants Lynn and Rising did in fact furnish the sum of $12,500, and established in the Wells Fargo Bank with that sum a fund from which they did in fact direct their agent Andrews to pay operating expenses of the Mires and Garner dredge; that some such expenses, including one earlier charge of plaintiff, were paid from this fund; that in mid-September, 1949, and in October 1949 defendants Lynn and Rising, by the words of one or the other of them, did in fact direct Donaldson (originally their duly authorized subagent for purposes of investigation) and defendant Mires, as their special agent, to purchase supplies needful for the dredge, charging said purchases to aforesaid fund; that defendants Lynn and Rising, by words of each of them, did in fact direct said special agents to refer sellers of said supplies to the Wells Fargo Bank for credit reference; that said bank, as special agent of defendants Lynn and Rising, reported to plaintiff that the credit of said defendants was good.

'That defendants Lynn and Rising did not in fact authorize the incurring of charges in excess of aforesaid fund, or against their general credit; that nevertheless said defendants, by establishing said fund, and directing purchases to be made against same, invested their special agents Donaldson (otherwise their sub-agent) and Mires with the apparent authority to buy upon the credit of said defendants; that said appearance was reinforced by the report of the Bank; that plaintiff, without negligence, could properly rely, and did in fact rely, upon said appearance in extending credit to Crescent Gold Dredging Company; that aforesaid appearance was dispelled on October 31, 1949, by a telephone call from the Bank; that in October, 1949, and prior to October 31, 1949, plaintiff had sold and delivered to Crescent Gold Dredging Company merchandise of the reasonable value of $859.12.'

Judgment was entered against defendants Mires and Garner for $898.60, and against defendants Lynn and Rising for $859.12, said judgment providing that liability for the lease is joint and several as among all defendants but not cumulative.

This appeal is by defendants Lynn and Rising. Defendants Mires and Garner have not appealed.

The principal contention of appellants is that the judgment is not supported by the evidence. We have read the record carefully and bearing in mind the 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 conclusion reached by the trial court, we are satisfied that the record amply supports the judgment.

It appears from the record that defendants Roy Mires and Joseph H. Garner owned and operated a dredge on Coffee Creek, in Trinity County. Appellants, Lynn and Rising, became interested and...