Carvalho v. McCoy

California Court of Appeal Nov 12, 1954 No. Civ. 8407Published

Before: Warne

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Holding. The court held that the trial court's finding that the plaintiff had actual knowledge of the partnership's dissolution prior to the sale of hay was supported by substantial evidence, thereby absolving the former partner of liability.

Issues

Whether there was substantial evidence to support the trial court's finding that the plaintiff had actual knowledge of the partnership's dissolution at the time of the sale.
Whether the failure to publish a notice of dissolution under section 15035.5 of the Corporations Code creates liability when the creditor has actual notice of the dissolution.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that notice of dissolution was not published and filed as required by section 15035.5 of the Corporations Code would not of itself make the respondent liable. The court, as noted above, specifically found that the appellant had actual notice of the dissolution.”

“Where there is a conflict in the evidence, that is a question for the trier of fact to resolve, and it will be upheld where there is substantial evidence to support it.”

WARNS, J. pro tem.

This is an appeal from that portion of the judgment which was entered in favor of defendant George Souza. No appeal is taken from the portion of the judgment granting plaintiff judgment against codefendant Robert McCoy.

Defendant Souza and defendant McCoy entered into a partnership agreement on December 1, 1948, under the name of Los Banos Hay and Grain Company.

In 1949 defendants applied to the State of California for a dealer’s license to conduct such business. Thereafter quite a volume of business was transacted in the vicinity of Los Banos and Firebaugh, and some at Gustine and Dos Palos. Defendants had an office and store where they conducted business, and on the outside of the building was a sign upon which was displayed the name of Los Banos Hay and Grain Company. The names of the defendants were not displayed on the sign. In the latter part of 1949 appellant saw McCoy and Souza at the Santa Rita Park. He asked them what the price of hay was at that time, and was given the price. No offer to buy or sell hay was made at that time.

Respondent Souza testified that this was the first time he had ever seen Mr. Carvalho; that he had never talked to Carvalho about buying hay from him and that subsequently he occasionally saw Carvalho on the streets of Los Banos.

In February, 1950, Souza and McCoy entered into a mutual agreement of dissolution. A notice of intended sale was published in the Los Banos Enterprise, but the notice of dissolution of the partnership was never published.

Respondent Souza testified that all customers were notified of the dissolution either personally or by word of mouth. He stated he did not personally tell Mr. Carvalho of the dissolution as neither he nor McCoy had done any business with Carvalho while they had been partners in the Los Banos Hay and Grain Company.

Sometime during the latter part of March, McCoy went to Carvalho’s ranch to discuss the purchase of hay. He went in his own personal car, which had no identification signs of any kind on it. At that time, Mr. Carvalho agreed to sell 366,420 pounds of hay at $22 per ton. This was the first and only sale

[704]

Carvalho v. McCoy

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