Sneed v. Kanelos
| Decision Date | 06 May 1957 |
| Citation | 150 Cal.App.2d 684,310 P.2d 706 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Wellington H. SNEED, as Trustee in Bankruptcy of the Estate of Andrew Kanelos and James Kanelos, doing business as Kanelos Bros., a co-partnership, bankrupt, Plaintiff and Appellant, v. Garefalia KANELOS, individually, Garefalia Kanelos, as Administratrix of the Estate of Jem Kanelos, also known as Jim Kanelos, also known as James Kanelos, Deceased, Defendant and Respondent. Civ. 9029. |
Bradford, Cross, Prior & Dahl, Sacramento, and Thomas W. Loris, Ochsner Building, Sacramento, for appellant.
Wilke & Sapunor, Sacramento, for respondents.
Appellant Wellington H. Sneed, the trustee in bankruptcy of the estate of Andrew Kanelos and James Kanelos, doing business as Kanelos Bros., a co-partnership, bankrupt, brought suit against Garefalia Kanelos, individually and as the administratrix of the estate of James Kanelos, to establish his claim as a partnership asset to certain real property and to establish his claim as a partnership asset to the proceeds of an insurance policy on the life of James Kanelos. Judgment was entered in favor of the defendant. The plaintiff appeals both from the judgment and from the order denying his motion for a new trial. Since an order denying a motion for a new trial is not an appealable order, the appeal from said order is dismissed. Section 963, Code of Civil Procedure.
James Kanelos, a partner in the firm of Kanelos Bros., died in July, 1948. His brother Andrew continued the business. In January, 1949, a petition for bankruptcy proceedings was instituted, and Andrew and James Kanelos, doing business as Kanelos Bros., were adjudicated bankrupt. No claim against the estate of James Kanelos was filed until 1951, when the trustee brought suit to establish a claim to certain property in which the partnership was alleged to have an interest.
In 1924, James acquired the real property which the trustee alleges was a partnership asset. Title was taken in James' name alone, and he paid the purchase price. James also acquired a slaughterhouse which was on the property. James built a home on the property in which he and his brother lived until 1939. Appellant offered evidence to show that at about the time James purchased the property, Andrew sent a dowry to Greece for their sister, and that by providing the funds for the dowry, he (Andrew) was to have a half interest in the property. Also at the time of the purchase, Andrew was to be married, and James took title in his name to avoid any possible trouble with Andrew's wife in case the marriage did not work out. After James had purchased the property he built a home upon the land, using his own funds and labor in so doing. Andrew had nothing to do with the construction, and he did not furnish any of the money used in the purchase of materials. When the house was completed James lived in it, and after Andrew married, he permitted Andrew and his wife to live in the house also. When James married the defendant Garefalia Kanelos, he asked Andrew to move out of the house, which Andrew did; and he, Andrew, then built a home of his own.
There is no evidence whatever that Andrew paid any portion of the purchase price of the land or of the old slaughterhouse building owned by one Kareazis. There is no evidence that before the purchase of the land, James made any promise to hold a half interest, or any interest, in the property in trust for his brother, Andrew, except the evidence that Andrew was to have a half interest because he provided the funds for their sister's dowry. On the contrary, all of the dealings of the brothers after 1924 indicate that James was the owner of the property.
Mr. Kareazis testified that after he sold the old Slaughterhouse to James Kanelos, he paid rent for the use of the slaughterhouse at a rate of $25 per month, and that he always paid the rent to James Kanelos and never to Andrew. Five other tenants also testified that they paid rent to James for the use of the slaughterhouse or the small dwelling house on the same property, or for both, at amounts varying from $15 to $30 per month. None of these tenants ever paid rent to Andrew or had any idea that Andrew claimed an interest in the property. He Andrew, never demanded rent from any of these persons. According to the testimony of Cladianos, when he and Andrew were first partners in 1931 to 1933, they used the old slaughterhouse to kill animals, and they used partnership funds to pay rental to James for the use thereof at the rate of $15 per month.
The record also shows that either James or his wife, Garefalia, paid all the taxes assessed against the land and never sought or received reimbursement for any share thereof from Andrew. James maintained the dwelling house and the small house upon the land and paid all expenses involved in such maintenance. Andrew never paid any portion of the cost of such maintenance.
The record also shows that when the partnership of Kanelos Bros. and D. Cladianos was formed in 1937, Mr. Himmelman, who was the accountant for the partnership, discussed the ownership of the property with James and Andrew when he first set up the partnership books, and at that time the land and improvements were not carried on the books as a partnership asset, nor at any later date; that the only things relating to real property that were carried as fixed assets of the partnership were those improvements which were put on the land after the formation of the partnership.
There is also evidence that in 1943 a written lease was prepared, under the terms of which the partnership leased the land from James for a period of five years at a monthly rental of $75. This lease was signed for the partnership by D. Cladianos.
The record further discloses that James and his wife borrowed money upon the property and executed deeds of trust to various banks as security for these loans, and that Andrew was aware of these...
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