Epley v. Hiller

WARNS, J. pro tem.

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Appellant appeals from the judgment. The action was for the balance due on an open book account. Prior to the date of trial, the action was dismissed as to appellant’s codefendant, Bert Cann, due to his death, and a judgment from which this appeal is taken was rendered against the appellant, Stanley Hiller, individually.

Appellant and Bert Cann formed a partnership to take over and operate a mining property at Smartsville, in Yuba County, California, under the name of Rosebar Development Company. For use in their mining operations Cann made arrangements for the purchase of water from the Nevada Irrigation District, hereinafter referred to as N.I.D., respondent’s assignor. The account with N.I.D. was opened on July 30, 1948, and water delivery began on August 10, 1948. Mining operations and supply of water ceased in June, 1949, at which time the original ledger sheet kept in the ordinary course of business by N.I.D. showed a balance due on the Rosebar Development account of $2,314.07, for recovery of which this action was brought. The partnership was dissolved on January 21,1949. The instruments by which appellant transferred his interest in the partnership to Cann, who assumed all liability for the debts thereafter incurred, were introduced into evidence to show the fact of dissolution, but do not appear to have been recorded. Respondent does not dispute the fact that as between Hiller and Cann such a dissolution took place, but does contend that respondent’s assignor, N.I.D., never received either notice or knowledge thereof, in any manner whatsoever. Over objection appellant testified that after the instruments evidencing dissolution were executed, Cann took a list of all the partnership creditors and notified each personally, and reported same to appellant; that personal notification was given by Cann to Mr. Varney, manager of N.I.D., during the entire period of the partnership accounts; but that appellant himself had not given notification. The record fails to disclose the fact of any written notice of

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dissolution. Appellant Hiller stated that prior to the dissolution he had visited the mining site on many occasions, but subsequent thereto he had not been on the property, and that until July, 1952, when a bill was sent to him, he had no notice that N.I.D. sought to hold him personally liable on the Rosebar Development Company account. One Mr. Quilty, ditch tender for N.I.D., also empowered to accept new accounts and do collecting throughout the Yuba County territory, testified as a witness on behalf of appellant, that he had heard of the dissolution, by rumor, and considered it Ms duty to notify Mr. Varney, manager of N.I.D., by telephone, of that fact, although he had no personal notice from Mr. Gann. Witness Bosanko, water master and hydrographer for N.I.D., testified from the records of the district that no notice, written or otherwise, of dissolution had ever been received by it, and that he himself had no such knowledge.