McKee v. Mires

• Decision Date: 25 April 1952
• Court: California Court of Appeals Court of Appeals
• Parties: McKEE v. MIRES et al. Civ. 8067.

Page 954

242 P.2d 954

110 Cal.App.2d 517

McKEE v. MIRES et al.

Civ. 8067.

District Court of Appeal, Third District, California.

April 25, 1952.

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

Carr & Kennedy, Redding, for respondent.

SCHOTTKY, Justice pro tem.

Plaintiff brought this action to recover the value of petroleum products delivered, and used by a gold mining dredge operated in Trinity County. The action was against the defendants individually, and against the defendants doing business as Crescent Gold Dredging Co., a copartnership. The complaint set forth three causes. The first count alleged an oral contract to pay plaintiff the reasonable value of gas, oil, and Diesel fuel delivered by him to defendants, and that there remained unpaid the sum of $1,236.08. The second cause was a common count upon a 'mutual, open and current book account for goods, wares and merchandise.' The third cause was a common count for goods sold and delivered. The complaint was amended to conform to proof as follows: 'That defendants, and each of them, by their spoken and written words and conduct, have at all times herein mentioned represented themselves and consented to each other representing themselves to various creditors and to plaintiff as partners in an existing partnership, and in reliance thereon plaintiff on the faith of such representation has given credit as hereinabove alleged to all of said defendants under the belief that there is and was an actual and apparent partnership, and said representations were made and consented to be made by said defendants in a public manner.'

Findings of fact were favorable to plaintiff, and judgment was thereafter entered against all defendants. Defendants Lynn and Rising appeal from the judgment.

The principle contention of appellants is that the evidence is insufficient to establish their liability. Bearing in mind the familiar 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 shall give a brief summary of the evidence as shown by the record.

The facts are somewhat similar to those involved in Gerlinger v. Crescent Gold Dredging Co., 108 Cal.App. 185, 238 P.2d 608 (hearing denied), recently decided by this court. The same dredging operation and same parties defendant were involved in that case.

Defendants Roy Mires and Joseph H. Garner owned and operated a dredge on Coffee Creek in Trinity County. Prior to the fuel deliveries for which suit was filed, appellants Rising and Lynn entered into an option contract dated October 18, 1949, providing that appellants were given an option to acquire an interest in the gold mining operation conducted by Mires and Garner for a consideration of $12,500 and an extension of the indebtedness then owed by Mires and Garner. Under the agreement, if the option was exercised the business would be incorporated under the name of 'Crescent Gold Dredging Company.' The agreement provided: 'It is expressly understood and agreed that Lynn and Rising are not, nor do they become by the execution of this agreement, copartners with the said Mires and Garner in their copartnership operations, and it is further understood and agreed that the said Lynn and Rising are not assuming any liability of any nature whatsoever concerning said copartnership, or its operations, save and except as may in writing be authorized by them.' The option was never exercised. However, a bank account was established for the purpose of conducting preliminary dredging operations. In this connected appellant Lynn testified:

'Q. Did you or Rising give any instructions to anyone or make arrangements with anyone to proceed to get the dredge operating prior to the signing of an agreement? A. Yes, we did because we didn't have the agreement. We told Andrews [an accountant] I think it was, to set up the bank account and to disburse the money or pay it out as he was instructed by Mires and Garner, or Mires.'

This account was opened in the name of the 'Crescent Gold Dredging Company.'

After the above arrangements the respondent discussed deliveries with appellant Rising. The respondent testified as follows:

'Q. Now did Rising tell you anything about this Cresent Gold Dredging Company? A. He said that they were forming a new company and he mentioned that Mr. Lynn was in it but he was out at that time.

'Q. Did he state anything else that you remember? A He told me that he would personally see that my bills were all paid.'

Respondent also testified that appellant Rising did not place a limit on anybody's authority to order oil, or limit the amount of oil that could be delivered, and that he was specifically informed by appellant Rising that Donaldson, Thomas, or Mires had authority to order fuel.

The unpaid oil bills represented deliveries made between the 22nd and the 31st of October, 1949. From October 4th through the 19th of October, 1949, deliveries were made in the amounts of $604, $604.49, $457.82, $369.87 and $332.13. These amounts were paid by check from Crescent Gold Dredging Company and signed by Mr. Andrews.

It appears that prior to the date of the option contract, respondent had furnished fuel to defendants Mires and Garner and that respondent notified said defendants that their credit rating was bad and that they could not have any more deliveries of fuel on credit. The last delivery was made to Mires and Garner on August 14, 1949.

Appellants first contend that the evidence is insufficient to support a finding of an actual copartnership, but in view of the fact that the court did not make a finding of actual partnership this contention becomes immaterial and need not be discussed.

Appellants next contend the evidence is insufficient to show a partnership by estoppel. The court found: 'That it is also true that defendants, Wallace Lynn, Stanley Reising, Roy Mires and J. H. Garner, and each of them, by their written words and conduct, did at all times, mentioned in plaintiff's complaint, represent themselves and consent to each other representing themselves, to various creditors and the plaintiff, as partners in an existing partnership entitled Cresent Gold Dredging Company; and in reliance thereon plaintiff on the faith of such representations gave credit to said defendants, and...