Paganucci v. Kalpouzos

MARKS, J.

This is an appeal from a judgment giving plaintiffs possession of a tractor for the purpose of sale in the liquidation of the affairs of a joint enterprise conducted by plaintiffs, copartners, operating under the name of Half Moon Fruit and Produce Company, on the one hand, and Peter Kalpouzos on the other, and from the order denying a motion for new trial, which is not appealable. The complaint is in the usual form found in claim and delivery actions, alleging in plaintiffs the ownership and right of possession of the tractor.

Plaintiffs, as copartners, were engaged in the business of shipping and selling farm and orchard produce as commission merchants. Kalpouzos was a farmer. During the cropping year of 1943, plaintiffs financed the farming operations of

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Kalpouzos and shipped and sold his crops. The result was a net loss. These parties also engaged in a similar operation during the cropping season of 1944, which, they contend also resulted in a net loss.

The agreement between plaintiffs and Kalpouzos was oral, and besides requiring plaintiffs to advance the money to pay operating costs of the farming operations, included the purchase of the tractor in question and other farming equipment, the purchase price of which was to be advanced by plaintiffs.

The tractor was purchased from Budd and Quinn. It was stipulated that their sales manager, if present, would have testified as follows: “Memoranda: 11th month, 17th day, ’43. Customer’s order for tractor. Signed by Pete Kalpouzos. Released by government to Peter Kalpouzos, 11-17-43. Granted, 12-30-43; Billed by girl here to Peter Kalpouzos and Half Moon Fruit Company. Box—looks like 2725. Anyway that is February 18, 1944. The receipt showed, Paid, and (by) Half Moon, February 21, 1944. I think that item there is the check that Half Moon sent in payment of it. February 21, 1944.” This evidence was not contradicted.

The agreement for the joint operation was made late in the year 1943, between Paul G. Smith, the authorized agent of plaintiffs, and Kalpouzos. According to the evidence plaintiffs were to secure 160 acres of farming land, advance the money for the purchase of the tractor and other implements, for seed, and for farming the land and maturing the crops. Kalpouzos would prepare the land for planting, plant and mature the crops and deliver them to plaintiffs for sale. Plaintiffs would sell the crops, pay the owner of the land 50 per cent of the selling price as rent, repay themselves the money advanced and divide the net proceeds equally between plaintiffs and Kalpouzos. A statement of account of some kind was introduced in evidence but it is not before us. While the evidence indicates that this account showed a net loss of $4,430, probably including the cost of the tractor and other farming equipment, there is not one word of evidence indicating that, the figures it contained correctly reflected the transactions or the correct balance between the parties.