Shearer v. Davis

McCOMB, J.

From a judgment in favor of defendants after trial before the court without a jury, in an action for an accounting and dissolution of an alleged joint venture, plaintiff appeals.

[879]

The evidence being viewed in the light most favorable to the defendants (respondents), and pursuant to the rules set forth in

Estate of Isenberg,

63 Cal.App.2d 214, 216 et seq. [146 P.2d 424], the essential facts are:

In July, 1934,.plaintiff and defendant.David Davis, hereinafter referred to as defendant, formed a joint venture to test and develop a tandem arrangement of an airplane foil or wing which could be evolved from the formula expressed in United States Patent No. 1942688. Defendant had been interested in aviation from his youth and obtained in January, 1934, the patent above mentioned. Between August, 1934, and July, 1935, plaintiff advanced to defendant approximately $2,900 which defendant used in supporting himself, paying wages to an assistant, and fabricating wing sections and other equipment to be used in making tests and running tests of air wings. In July, 1935, plaintiff told defendant that he would not advance any more money and that “things had finished.” Plaintiff allowed defendant to keep the test car which belonged to plaintiff for a few more tests. This car was returned to plaintiff in August, 1935. In January, 1936, defendant borrowed the car from plaintiff who consented that defendant might use it for several test runs. At plaintiff’s request the car was returned to him shortly after April 4, 1936. Thereafter no discussion relative to their business dealings took place between plaintiff and defendant until the summer of 1941. The present action was filed August 6, 1941.

There are two questions necessary, for us to determine which will be stated and answered hereunder seriatim:

First:

Was there substantial evidence to sustain the trial court’s finding that the joint venture between plaintiff and defendant was dissolved in April, 1936?

This question must be answered in the affirmative and is governed by this rule:

Dissolution of a joint venture takes place when either party to the joint venture ceases to be associated in carrying on the common business as distinguished from the winding up of the business. (Civ. Code, § 2423. See, also,