Mardikian v. Tatosian

Citation8 Cal.Rptr. 635,185 Cal.App.2d 664
CourtCalifornia Court of Appeals
Decision Date26 October 1960
PartiesGeorge MARDIKIAN, Plaintiff and Respondent, v. Haig TATOSIAN, A. S. Menick, Trustee in Bankruptcy, substituted party, Defendant and Appellant. Civ. 6249.

Benjamin W. Henderson, Palm Springs, Hanna & Morton, Max K. Jamison and Edward S. Renwick, Los Angeles, for appellant.

Shirley, Saroyan, Calvert & Peterson, Harry P. Calvert, S. M. Saroyan and Robert E. Cartwright, San Francisco, for respondent.

GRIFFIN, Presiding Justice.

Plaintiff-respondent George Mardikian brought this action for dissolution and accounting of a partnership alleged to have been orally entered into on November 15, 1943 between him and defendant-appellant Haig Tatosian (hereinafter referred to as defendant). (H. S. Menick, Trustee in Bankruptcy, has been substituted as defendant and appellant.) The partnership selling and producing vegetables and other produce on a 320-acre piece of property in Imperial Valley owned equally by the parties. It is alleged that defendant operated the farm, earned large profits and accumulated certain assets, and defendant has appropriated them without accounting and that the amount of profits and assets was unknown to plaintiff. Defendant denied the allegations and claimed no partnership ever existed.

The court found generally in accord with the allegations of the complaint and specifically found that on November 15, 1943 they entered into the partnership agreement and they transacted business according to the agreement until August 24, 1955 when it was dissolved by mutual consent, subject to an accounting; that by the agreement the parties agreed to equally share the profits and/or losses; that from the date of the agreement the partnership transacted a large business and earned large profits and defendant has never accounted to plaintiff for the full earnings and profits and has failed to pay plaintiff his share thereof; and that defendant collected $36,503.94 as plaintiff's share which he refused to turn over to plaintiff. Judgment was entered accordingly.

Plaintiff lived in San Francisco. His wife and defendant's wife were sisters. Defendant was a produce man engaged in operations in the El Centro area. The crop year usually begins as of June 1 and ends at the same time the following year. From 1943 to 1954 defendant made certain remittances to plaintiff pertaining to the claimed income of the property. The principal argument is that the court, in its accounting action, failed to take into consideration uncontradicted evidence of losses to the partnership, aggregating $36,046.90, i. e., losses totalling $11,462.64 in the crop years 1948-49 and 1949-50, and losses totalling $24,584.26 in the crop year 1954-55.

In his reply brief, defendant claims he overlooked an accounting error as to crop years 1948-49, 1949-50 and says that there was an additional sum of $5,889.06 due as credit on the judgment because this payment was made to plaintiff as rental for defendant's use of the land during the two crop years and that this sum represents one-half of that item. Defendant seeks to have the judgment reduced accordingly.

Plaintiff's certified public accountant testified that he examined the records pertaining to the farming operations of that tract commencing January 1, 1944 through crop-year ending June 30, 1954, and these records show a net profit of $36,503.94 due plaintiff. He indicated a balance of $8,930.30 was shown on the books as an accounting from the date of inception of the partnership to June 30, 1954.

According to the evidence, in 1943 Martin D. Wahl, Inc. negotiated for the purchase of the 1,600-acre Cudahy Ranch, but, according to defendant's story, could not finance all of the amount required, i. e., $275,000, and Wahl asked defendant to purchase 320 acres of that land for $55,000. Defendant requested plaintiff to advance one-half of that amount to make the purchase, which was done, under the oral agreement that defendant would operate that acreage and account for and pay to plaintiff one-half its profits or returns. The acreage was purchased and defendant leased the 320 acres to Wahl and Wahl and defendant entered into some form of joint venture or partnership to operate the entire 1,600-acre farm as a single unit and it was so operated for a few years. Eventually that relationship terminated and defendant later operated the 320 acres by farming or leasing it out to others, either for pasturage or growing crops. Defendant's claim is that plaintiff was entitled to only one-half of the rental return and he, defendant, was entitled to retain all the money earned by the Tatosian-Wahl joint venture or partnership from the 320 acres, without accounting to plaintiff for one-half of it. He further claims that he did not believe he was in partnership with plaintiff all these years and actually did not have to account to plaintiff for these profits and did not inform him of his losses during the years 1948-49 and 1949-50. His contention is that since the court has awarded to plaintiff one-half of the profits over these years, defendant should now be credited with one-half of the claimed losses for the years 1948-49, 1949-50 and 1954-55.

Plaintiff's story is that defendant telephoned him about a wonderful opportunity to buy land in Imperial Valley and defendant needed $55,000 to put the deal through and purchase 320 acres of it; that defendant had an agreement with Wahl to farm the entire 1,600 acres as one unit and all of them would be one-fifth partners and all would be rich, and plaintiff would share in the profits. After further assurance, plaintiff gave $50,000 to defendant and borrowed an additional $5,000 which was also paid to defendant to be used to buy the 320-acre parcel. Defendant gave a promissory note to plaintiff's wife as security for the loan of one-half of the amount advanced by plaintiff and a promissory note to his brother to secure the $5,000 loan. After some years of operation of the acreage, defendant paid these notes. It was fully agreed that defendant was to have full control over the operation of the 320 acres for such production as in his judgment was best. He told plaintiff he knew how to carry on a produce business operation and they would make so much money 'your head will swim' and 'we will make plenty of money in our own partnership.' Defendant took plaintiff to see the 1,600-acre property and pointed out homes, buildings, feed bins, alfalfa and other improvements on the property, and said that each of them now had a one-fifth interest in them. It developed that the 320 acres purchased by them had no buildings on them and were level land planted to alfalfa and had been operated in connection with the entire farm.

Some remittance, as herein indicated, was returned to plaintiff but in much smaller amounts than represented. For a few years plaintiff kept inquiring of defendant about his small returns and defendant kept saying he should wait because he (defendant) expected greater returns in the near future. It does appear from certain...

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