Reid v. Gillespie

PEEK, J.

By deed dated May 21, 1946, plaintiff and defendants, together with one J. 0. Hutton, became the owners of certain placer mining claims located in Plumas County. The purchase price of the property was $12,500, one-fourth thereof being advanced by Hutton and tlie remainder advanced by plaintiff which, according to his complaint, represented his own purchase of a one-fourth interest in the property, and the balance of $6,250 being a loan by him to defendants for the purchase of their interests, which sum was to be repaid to plaintiff if and when a garage owned by the defendant Prank E. Gillespie was sold. The first count of the complaint is a common count for the money so loaned and the second count is one to impress a lien on the property so purchased to the extent of the defendants’ interest therein.

At the conclusion of the hearing the court found in favor of plaintiff and entered judgment against the defendant Prank E. Gillespie in the sum of $6,250, declared a lien against the interest of both defendants in the property and further ordered that their interests be sold and the proceeds applied to the satisfaction of the judgment. Prom the judgment so entered defendants have appealed.

Defendants first contend that the evidence clearly shows that plaintiff was to be repaid out of the profits from the operation of the mine. In this regard the record discloses that plaintiff alleged and so testified, as did Hutton, that the defendant Frank E. Gillespie was to repay plaintiff from the proceeds of the sale of the garage owned by Gillespie. Said defendant, however, testified, as did his brother J. D. Gillespie and other witnesses, that plaintiff was to be repaid out of the proceeds derived from the operation of the mine. Thus the trial court was presented with a conflict in the evidence, which conflict was resolved in favor of plaintiff, and as such finding is supported by substantial evidence this court may not interfere.

(Crawford

v.

Southern Pacific Co.,

3 Cal.2d 427, 429 [45 P.2d 183].)

Defendants next contend that as this was a partnership transaction the fourth partner (Hutton) was a necessary party, and for the same reason the action was improper without an accounting and dissolution of the partnership.

[771]