Hall v. Hagerman
| Decision Date | 14 November 1951 |
| Citation | 107 Cal.App.2d 523,237 P.2d 80 |
| Parties | HALL v. HAGERMAN. Civ. 7976. |
| Court | California Court of Appeals Court of Appeals |
Riggins, Rossi & King, Napa, for appellant.
Ralph Trower, Napa, for respondent.
On July 22, 1947, the parties hereto became copartners under written articles. The business of the firm was the wholesaling and retailing of candy, nuts, gum and allied lines of merchandise. The business centered in Napa and involved three sales routes for the covering of which the partnership had three trucks, two driven by the copartners and one by an employee. On July 23, 1948, the partners executed a document entitled 'Agreement for Dissolution of Partnership', and this action arose out of the varying interpretations which the parties thereto placed upon that instrument. The action was begun by Hall who filed a complaint against Hagerman in the form of a common count for money had and received, claiming recovery of the sum of $1,347.90. No mention of the partnership was made in that pleading. Hagerman answered, denying generally the common count allegations of the complaint. He also counterclaimed for money had and received, seeking recovery of $96.54. He cross-complained for the same amount and in that pleading he alleged the execution of the articles of the copartnership and the execution of the dissolution agreement, attaching both documents to his pleadings as exhibits. He declared that by the dissolution Hall had received assets exceeding in value in the amount sued for those he had received. In his prayer, he also asked that an accounting be had of the partnership affairs. It is well at this point to refer to the well-estalished rules that an action at law by a partner or copartner ordinarily will not lie on a claim growing out of the partnership transactions until the business is wound up and the partners' affairs finally settled, 68 C.J.S., Partnership, § 108, p. 550; that if an action between partners is for a balance due, the complaint must aver a settlement of firm affairs and a determination of the amount owing by defendant to plaintiff; but that if the action is for money received, based on the theory that a final settlement has been had, a complaint in the form of a common count need not allege that there had been an accounting or settlement of the partnership affairs, 68 C.J.S., Partnership, § 129, p. 565, and, finally, that an action upon a common count for money had and received proceeds upon the theory that a final settlement has been made. Crudo v. Guida, 43 Cal.App.2d 26, 29, 110 P.2d 109. It is thus apparent that plaintiff by pleading in common count for money had and received, without mention of the past existence of the partnership between himself and the defendant proceeded upon the theory that a dissolution had occurred and a final settlement and distribution of assets had been arrived at. What the theory of defendant and cross-complainant Hagerman was is not so clear, for he did pray for an accounting, a relief consistent only with the nonoccurrence of any settlement of partnership affairs.
At the trial the plaintiff placed in evidence the agreement for dissolution and sought by the interpretation which he placed upon the document to sustain his cause of action. It was at once apparent from that document that it contained many inconsistencies and was fraught with much ambiguity. There is practically no contention by either party that the court did not need evidence of the circumstances attendant upon its execution in aid of its interpretation. Such evidence was therefore taken and the trial court construed the document as having constituted not only an agreement for the dissolution of the partnership but also an agreement for final settlement of partnership affairs and for the distribution between the partners of the assets of the partnership with one contingency, which was that if by the immediate sale of certain partnership assets received by defendant Hagerman he should realize a substantial profit or increase over the amount at which the partners had valued these assets, then he was to make a further division of the profit or increase so derived, turning over one-half of it to plaintiff Hall. The court found, however, as to this contingency that no such profit had been realized and therefore adjudged the plaintiff was to take nothing. The trial court also disallowed the claim of defendant Hagerman for the sum sued for by counterclaim and cross- complaint and denied Hagerman's prayer for an accounting. Plaintiff Hall has appealed. Defendant and cross-complainant Hagerman has not.
The question on appeal is whether or not the trial court's interpretation of the contract finds support in the instrument itself, as that interpretation is aided by the evidence taken. The rules by which we are guided in the solution of this problem are well stated in such cases as Woodbine v. Van Horn, 29 Cal.2d 95, 104, 173 P.2d 17; Crillo v. Curtola, 91 Cal.App.2d 263, 272, 204 P.2d 941, and Nuland v. Pruyn, 99 Cal.App.2d 603, 609, 222 P.2d 261. We need not restate those rules here. Appellant makes some further contentions which will be stated and disposed of later. The written agreement for dissolution contains many contradictions among its terms and is affected by much ambiguity. We think it must be quoted. It reads as follows:
'Agreement for Dissolution of Partnership
'This Agreement made and entered into in duplicate this 23rd day of July, 1948, by and between Ralph Hagerman of Napa, California, party of the first part and John M. Hall of the same place, party of the second part.
'Witnesseth:
'That said parties and each of them have mutually agreed and do hereby agree to a dissolution of the partnership entered into by and between them on the 22nd day of July, 1947, and which business has been heretofore conducted by them under the name of Hagerman and Hall. It is understood and agreed upon the execution of these instruments that the party of the second part is to receive and is entitled to withdraw from the bank account of said business heretofore conducted by them as above set forth the sum of One Thousand Six Hundred Eight and 30/100 Dollars ($1,608.30), and the party of the first part shall be entitled to withdraw the sum of One Thousand Dollars ($1,000.00).
'The party of the second part shall be also entitled to receive, accept and collect all accounts receivable owing to said copartnership and the said accounts receivable are hereby fixed and established in a sum of Four Hundred Fifty-seven and 74/100 Dollars ($457.74); second party is also entitled to receive and to dispose of one (1) Chevrolet truck and one (1) Ford truck belonging to said co-partnership and to receive and keep the proceeds derived on the sale of the same.
'It is understood and agreed that each of said parties did upon the commencement of said co-partnership invest the sum of Five Thousand Seven Hundred and Fifty Dollars ($5,750.00) in said business, and it is the desire and intention of each of the parties hereto that they and each of them shall receive from said business on the dissolution thereof and of said partnership the amount of their original investment plus any profit or proceeds derived on the sale of said business by the party of the first part.
'It is further understood and agreed that the accounts payable amount to the sum of Two...
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In re Fineberg, Bankruptcy No. 92-11857DAS
...Malott v. Seymour, 101 Cal.App.2d 245, 246, 225 P.2d 310, 311, (1950) (additional citations omitted); and Hall v. Hagerman, 107 Cal. App.2d 523, 524-25, 237 P.2d 80, 81 (1951). The courts so hold because "it is ordinarily impossible to determine whether or not the defendant partner is in fa......
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Barlow v. Collins
...the partnership until after the partnership has been dissolved and an accounting has been had, citing such authority as Hall v. Hagerman, 107 Cal.App.2d 523, 237 P.2d 80; Martyn v. Leslie, 137 Cal.App.2d 41, 61, 290 P.2d 58; Shearer v. Davis, 67 Cal.App.2d 878, 879, 155 P.2d 708; and Martin......
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Berry v. Skone, 4
...circumstances may bring an action at law against the other joint venturer for the adjudication of the remaining item. Hall v. Hagerman, 107 Cal.App.2d 523, 237 P.2d 80. As a further ground for reversal the appellant urges that the Municipal Court did not have jurisdiction to try this case. ......