Moen v. Art's Cafe

MUSSELL, J.

In this action on a book account plaintiff appeals from a judgment in favor of defendants Arthur L. Uecher and Pauline Uecher, on the sole ground that the evidence establishes the existence of an ostensible partnership and partnership by estoppel between the Uechers and defendants Wilbur H. and Aldine V. Stone.

[578]

Plaintiff was the assignee of certain claims of wholesale houses for balances due by reason of the failure of defendants to pay for liquor sold to them as operators of a restaurant known as Art’s Café in the city of Colton. On January 10, 1947, the Uechers, who, prior to that time, had operated the business, leased it to the Stones until January 12, 1952. The lease was not recorded and contained a provision that the liquor license was to be taken out in the names of Arthur L. Uecher and Wilbur IT. Stone. Ten days after the execution of the lease the defendants Arthur L. Uecher, Pauline R. Uecher, Wilbur H. Stone and Aldine V. Stone signed an application to the State Board of Equalization for the transfer of the on-sale liquor business and pursuant to the application, a license was issued in the names of the four signers of the application. The liquor sold by the plaintiff’s assignors was delivered to the café to the Stones and billed to the four defendants whose names appeared on the license. The café business was conducted by the Stones as lessees, and such of the liquor bills as were paid appear to have been paid by checks signed by Wilbur H. Stone.

The lease provided for a monthly rental in the sum of $450 or 8 per cent of the gross receipts of the business, whichever sum was the greater, and lessees were the sole proprietors of the business and premises.

The trial court found that the defendants A. Stone and W. Stone became indebted to the plaintiff’s assignors in the total amount of the claims presented upon open book accounts for liquor sold and delivered to them and gave judgment against the Stones for the balance due. It was further found that the lessors did not participate actively in the operation of the café business and that the lessees purchased the merchandise herein involved from the plaintiff’s assignors. The judgment also provided that plaintiff was entitled to nothing as against defendants Arthur L. and Pauline R. Uecher. Plaintiff finds no fault with the judgment in his favor against the Stones, but contends that the court should have rendered judgment in his favor against the Uechers on the ground that an ostensible partnership and partnership by estoppel was established between the Uechers and Stones.