Barlin v. Barlin

VALLEE, J.

Appeal from parts of a judgment in consolidated actions for money alleged to have been lent and for a divorce.

Benjamin Barlin brought an action (624730) against Ina Schoncite Barlin for money lent in two counts: (1) that he had loaned $20,000 to defendant, only $7,243 had been repaid, leaving a balance due and owing of $12,787; and (2) he had loaned an additional $11,000 to defendant, no part of which had been repaid, and there was due and owing to him the sum of $11,000.

Ina filed an answer and counterclaim, denying she was indebted to Benjamin. She pleaded affirmatively that she, Benjamin, and one Sidney Wolfe were engaged in a joint venture, the $20,000 was advanced to the joint venture, and profits and losses were to be shared alike. As to the second count she pleaded the $11,000 was neither loaned to her nor advanced to the joint venture for any purpose whatever. In her counterclaim she alleged that upon the repayment of moneys advanced by Benjamin, along with his share of the profits arising out of the joint venture, she overpaid him $5,344.62 through error; and that upon her demand for repayment, he refused to pay. She prayed for a judgment against him in the sum of $5,344.62. As her second counterclaim, she alleged that on February 4, 1954, the joint venture was terminated by mutual consent of the parties and the business was dissolved.

Ina was the owner and operator of a retail jewelry store in Beverly Hills. Sidney Wolfe was an expert diamond cutter and dealer in the purchase of diamonds and other valuable gems. Benjamin was an entrepreneur. On January 1,1953, the three entered into a joint venture for the purchase and sale of jewelry on these terms and conditions: (1) Benjamin was to advance all necessary funds for the purchase of the jewelry; (2) Wolfe was to locate and purchase the jewelry with the funds advanced by Benjamin; (3) Ina was to sell the jewelry through her retail store; and (4) the profits and losses of the venture were to be shared equally.

Benjamin advanced $20,010 to Wolfe for the purchase of five or six pieces of jewelry. Wolfe bought the jewelry and left it with Ina for sale. Certain pieces of the jewelry were

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sold and the profits were divided equally. One piece purchased for $1,525 never was sold and Ina has it. Another item was sold for $8,250 plus taxes, towards which Ina advanced $1,200 for additional diamonds. She was not reimbursed for the $1,200. The customer paid $3,200 on account, leaving a balance of $5,050, plus taxes in excess of $1,000. Ina brought an action in her own name against the buyer for the amount owed. The $8,250 to be derived from the sale of the latter piece of jewelry, when paid in full, plus the unsold item for $1,525, constituted the assets of the joint venture on its dissolution.