Cunningham v. DeMordaigle

[621]

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury decreeing that he is entitled to $3,900 to be paid “only out of funds on deposit or other assets of” a joint venture, defendants appeal.

The conceded facts are these:

On February 25, 1946, the trial court entered an interlocutory judgment finding that plaintiff and defendants were joint venturers. A reference was ordered for the purpose of an accounting. An accounting was had and when returned to the court, objections were filed thereto. After a hearing of the proposed accounting and objections thereto the trial court, without terminating the joint venture, made a finding that plaintiff ivas entitled to $3,900 out of the assets of the joint venture because of the agreement between the parties. A judgment was entered accordingly.

Defendants urge reversal of the judgment on the proposition:

That in the absence of a termination of the joint venture and a final settlement of its affairs, plaintiff, a joint venturer, m.ay not maintain an action to recover an amount allegedly due him by reason of the joint venture agreement.

This proposition is tenable and is governed by the following pertinent rules of law:

First: The rights and liabilities of joint venturers as between themselves are governed by the same rules as those which apply to partnerships.

(Zeibak

v.

Nasser,

12 Cal.2d 1, 12 [82 P.2d 375];

Shearer

v.

Davis,

67 Cal.App.2d 878, 881 [155 P.2d 708].)

Second: Partners cannot sue one another at law in respect to any of the business of the partnership or to recover damages from one or the other of the copartners for a breach of a partnership agreement. The remedy is by a suit in equity for a dissolution of the partnership and an accounting and settlement of the partnership affairs.