Henningsen v. Barnard

• Decision Date: 17 April 1953
• Citation: 255 P.2d 837,117 Cal.App.2d 352
• Parties: HENNINGSEN v. BARNARD et al. Civ. 15348.
• Court: California Court of Appeals Court of Appeals

Page 837

255 P.2d 837

117 Cal.App.2d 352

HENNINGSEN v. BARNARD et al.

Civ. 15348.

District Court of Appeal, First District, Division 2, California.

April 17, 1953.

Shapro & Rothschild, San Francisco, for appellants.

O. Vincent Bruno and Harold Unterberg, San Jose, for respondent.

NOURSE, Presiding Justice.

This is an appeal from an order granting a new trial after judgment for defendants by the court sitting without a jury. The amended complaint contained four causes of action, to the following effect: The first that Moe Howard, Meyer Winkleman, David Barnard and Alec Barnard individually and as copartners doing business under the name of Barnard Brothers Textile Division in June, 1949, in New York City bought and received from plaintiff's assignor textiles on the price of which $7,787.84 remained due and owing; the second that plaintiff's assignor on September 21, 1949, in the Supreme Court of New York County recovered judgment against said Moe Howard, individually and as copartner and against said copartnership Barnard Brothers Textile Division in the amount of $8,548.74 of which $7,913.74 remained due and owing; the third is to the same effect as the first but with the addition of the allegations that on March 19, 1949, a certificate of limited partnership of Barnard Brothers Textile Division was executed, which was filed in the office of the county clerk of New York County on March 21, 1949, and thereafter published which provided that said David Barnard was a limited partner who would contribute $25,000 in cash, but that he had not contributed more than $15,000 and that the amount of $10,000 he owed to the partnership should be subject to plaintiff's claim; the fourth that said David Barnard and Al Zeder in October, 1949, when the said partnership was insolvent, shipped assets of the said partnership of a value in excess of $8,000 to California for the purpose of defrauding creditors, disposed of these assets and converted the proceeds, of which they became involuntary trustees for creditors. Only David Barnard and Alec Barnard were served in this action so that they were the only parties defendant. The court gave judgment for them finding among other things in substance that Alec Barnard was not a partner in Barnard Brothers Textile Division, that David Barnard was a limited partner in said partnership, that he had contributed in excess of $25,000 and was not liable for debts of the partnership and that neither of said two defendants had been served with summons in the New York action. Plaintiff moved for a new trial on the grounds of newly discovered evidence, with supporting affidavits, of insufficiency of the evidence to justify the decision and of errors of law occurring at the trial. The motion was granted 'on the grounds among others of insufficiency of the evidence to justify the decision of the Court.' Defendants appeal.

The main point in dispute on appeal is whether the new trial could correctly be granted on the ground of insufficiency of the evidence. Plaintiff-respondent did not point out any specific errors of law as having occurred at the trial and we did not find any. The affidavit in support of the motion for a new trial showed that the alleged newly discovered evidence related to the alleged existence of a concealed interest of Alfred D. Zeder in the limited partnership under the name of 'Barnard Brothers Textile Division', said to be discovered on September 20, 1951, by the examination of a partnership contract dated March 14, 1949, which provided for said interest. However, at the trial in this case the witness Winkleman, concededly a general partner in said partnership, had testified to the fact that Al Zeder entered the partnership on March 14, 1949, and that said partnership was terminated by him on March 15. Counter-affidavits in behalf of defendants showed moreover that on March 17 a certificate of Limited Partnership under the name of 'Barnard Brothers Textile Division' containing the interest of Zeder had been filed in the office of the county clerk of the county of New York and that on March 19, 1949, there had been filed in said office a certificate cancelling said prior certificate. Appellants therefore urged that the alleged newly discovered evidence could not justify a new trial because it was known and obtainable at the time of the trial and cumulative only. Knox v. Benbo, 218 Cal. 779, 780, 24 P.2d 761; Parker v. Southern Pacific Co., 204 Cal. 609, 616 et seq., 269 P. 622; Langdon v. Langdon, 47 Cal.App.2d 28, 33, 117 P.2d 371; Sitkei v. Frimel, 85 Cal.App.2d 335, 338, 192 P.2d 820, and moreover because no showing whatever of diligence was made wherefore the affidavits were insufficient to support an order for a new trial on the ground of newly discovered evidence. Edwards v. Floyd, 96 Cal.App.2d 361, 215 P.2d 117; Slemons v. Paterson, 14 Cal.2d 612, 615-616, 96 P.2d 125.

Respondent's brief does not contain anything with respect to these points. Although generally the granting of a motion for a new trial on the ground of newly discovered evidence is a matter within the discretion of the trial court, we must under the above circumstances and authorities hold that there was no legal basis for the granting of a new trial on that ground.

We come now to the main question, whether a new trial could be granted on the ground of insufficiency of the evidence, the only ground on which respondent defends the order. Here again it is the rule that the matter is largely in the discretion of the trial court, that it is exclusive province to weigh the evidence and to draw inferences from it. If, however, as a matter of law there is no substantial evidence to support a judgment in favor of the moving party, an order granting a new trial must be reversed on appeal. Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689; Pirrone v. Nuccio, 78 Cal.App.2d 864, 868-869, 179 P.2d 18. Appellants urge among other things that there is no substantial evidence on which either of the two defendants could be held liable to plaintiff on any of the counts. As to the fourth cause of action, although there was evidence that goods were shipped to Al Zeder in California, there was none that David Barnard had any connection with said shipments or the disposition of the goods or received in any manner any of their proceeds. Respondent did not dispute this on appeal, and it is indisputable. The facts on which the parties base their arguments as to the liability or absence of liability of the two defendants for obligations of Barnard Brothers Textile Division with relation to the first three causes of action are mostly undisputed although in some particulars not very clear.

For many years David and Alec Barnard had been in the office equipment business in San Jose as a partnership under the name of Barnard Brothers in which both equally were general partners. They also transacted many other kinds of business as partners. Moreover they had a general understanding that if David would transact any other business in his own name Alec would get 50% of the profit David made and contribute 50% in the loss David might suffer. In the beginning of 1948 a large purchase of government surplus merchandise was concluded in New York under the name of Barnard Brothers, but with them some other persons, among whom Meyer Winkleman, were internally interested in said transaction as joint venturers. The San Jose firm transferred $35,000 to New York originally for said surplus venture. Alec remained in San Jose; David went to New York City and there opened an office for Barnard Brothers at 67 Wall Street. As an off shoot of the surplus business Barnard Brothers on Winkleman's initiative also entered the textile business at the same address. It is not quite clear who before March 19, 1949, participated in that business or whether it was transacted under the name of Barnard Brothers or Barnard Brothers Textile Division. The certificate of limited partnership dated March 19, 1949, and filed March 21, 1949 (Plaintiff's Exh. 1) recites that since October 14, 1948, Winkleman and Howard were interested with David Barnard in the textile business 'under the firm name of Barnard Brothers at 67 Wall Street, Manhattan, New York City', and that they wished to continue that business in a limited partnership, but there is also testimony that the textile business started earlier than October 14th, that the name since October was Barnard Brothers Textile Division and that Howard was not interested in it but only worked on commission. Moreover the recital disregards the short lived partnership in which Al Zeder was a partner. At any rate there is no evidence that Alec Barnard personally had any contact with said textile business.

The certificate mentioned Winkleman and Howard both residing in New York City as general partners and David Barnard residing at San Jose, California, as limited partner. It was provided that the latter 'shall contribute to the capital of this partnership the sum of twenty-five thousand ($25,000) Dollars in cash.' Both David Barnard and Winkleman testified that around March 19 the contribution of David Barnard as limited partner was paid in by transfer of an account in the National City Bank in the name of Barnard Brothers to Barnard Brothers Textile Division by means of a check or otherwise. Both testified that they believed the amount transferred in that way was probably about $35,000 and David Barnard moreover testified that all the money in said account in the name of Barnard Brothers was his. Winkleman further testified that David Barnard withdrew a total of $2,200 from Barnard Brothers Textile Division for profit items and Alec Barnard testified that he received small checks in said aggregate amount and that theoretically he got half of it. Both Alec and David denied that Alec was a partner in the limited partnership, although he would participate in David's profit or loss;...