Shirley v. Cook
| Decision Date | 13 July 1953 |
| Citation | 119 Cal.App.2d 220,259 P.2d 25 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SHIRLEY v. COOK. Civ. 4300. |
R. I. French, Brawley, and Ernest R. Utley, Los Angeles, for appellant.
Horton & Knox, El Centro, for respondent.
Plaintiff and respondent brought this action alleging generally that there was an oral agreement of partnership pursuant to which plaintiff and this appealing defendant conducted general farming operations in Imperial County. The principal conflict revolved around the question of the terms of this oral agreement of partnership and whether or not the real property in question was, pursuant to the oral agreement of partnership, acquired as an asset of the partnership. Plaintiff, in his complaint, alleged that the real property, although paid for by defendant, was acquired by defendant for the partnership. (Title thereto was taken in defendant's name and that of his wife, Eleanor M. Cook, as joint tenants.) The wife was not made a party to this action. The prayer was for an order directing that the books and records of the partnership be made available for the purpose of making an accounting of the partnership operations, for the appointment of a referee for that purpose, and for an 'order declaring the interest of the plaintiff in and to the real property hereinbefore described and the rentals received and derived therefrom heretofore and to be derived therefrom hereafter, and for a dissolution and winding up of the said partnership. * * *'.
Defendant's answer denies generally the allegations of the complaint, alleges that the general partnership to carry on certain farming operations did exist, and alleged that the real property involved was not partnership property but was, at all times, community property of defendant and his wife.
After trial, the court found generally in favor of plaintiff and that the 'said property is an asset of the partnership'; was not the community property of defendant and his wife except as to defendant's interest therein; that plaintiff did not discover title was taken in the names of defendant and his wife until shortly before the commencement of the action; that the income therefrom, after deducting taxes paid by defendant, should be accounted for; that there never has been a complete accounting in connection with the real property but only with the partnership operations; that it is necessary that such an accounting be had; and that defendant be required to furnish such an accounting to the satisfaction of the court. It then provides that the 'Court reserves jurisdiction to supervise the making of said final account and to pass upon said final account, and to do all other things necessary to effect a complete termination of the partnership relation and a winding up and distribution of the partnership assets.' The interlocutory judgment so recites and reserves jurisdiction to approve and settle such account, to terminate the partnership, and to make such order as are necessary to carry the judgment into effect.
The ultimate effect of the interlocutory judgment was to declare that the real property and its income was partnership property. No disposition of the real property, according to the proportionate interest of each party, was attempted; no sale or partition was sought by the plaintiff, nor was it ordered in the judgment entered. The ultimate question of a final accounting and disposition of the respective interests in the partnership was continued for a further order and final judgment.
No provision is made in Section 963 of the Code of Civil Procedure...
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