Ellingson v. Walsh, O'Connor & Barneson

[674]

GIBSON, C. J.

This is an action against a partnership and its members for rent due under a written lease. The case was submitted upon an agreed statement of facts. Judgment was rendered against the partnership and all general partners, and from this judgment Lionel T. Barneson, one of the general partners, appeals. Appellant admits his liability for rent, but contends that the obligation therefor arose before his admission to the partnership, and that under section 2411 of the Civil Code this liability must be satisfied only out of partnership property.

On October 4, 1929, the First National Corporation, as lessor, let the premises in question to Walsh, O’Connor & Company, a special partnership, as lessee, for a period of ten years, at a total rental of $66,000, payable in monthly instalments of various amounts. In September, 1930, the original lessor assigned the lease to the First National Bank of Beverly Hills, of which plaintiff is receiver. In December, 1930, the limited partnership of Walsh, O’Connor & Barneson was formed, and all of the rights of the original lessee were assigned to the new partnership, which thereafter occupied the premises and paid rent to the bank as lessor.

On April 21, 1931, H. J. Barneson withdrew as a general partner. On April 28, 1931, appellant Lionel T. Barneson was taken in as a general partner, and ever since has enjoyed all of the rights and privileges and assumed the obligations as a general partner of said partnership. In February, 1932, the partnership, pursuant to written consent obtained from the lessor, sublet the premises to a third party who was in possession all of the time for which rental is sought to be recovered. The sublessee paid rent to the partnership. During the period between April, 1931, and March, 1932, the partnership paid the full rent due under the lease to the lessor. The judgment herein is for rent claimed to be due for the period commencing March 1, 1932, and ending January 25, 1933, in the sum of $2,374.13, after deducting certain credits and payments. The judgment was a general one against all defendants, with no proviso restricting its enforcement or satisfaction against appellant.

The issue in this case is not the liability of the partnership as such, nor the liability of its assets. There is no doubt whatever that the plaintiff may satisfy his claim against the partnership out of any of its properties. The sole ques