Sausser v. Barrack

123 Cal.App.2d Supp. 948 (1954) LEWIS A. SAUSSER, Appellant,

v.

LOUIS M. BARRACK et al., Respondents.

California Court of Appeals.

Jan. 15, 1954. Merideth L. Campbell for Appellant.

Ralph W. Squier for Respondents.

BURCH, J.

Plaintiff brings this action to recover a balance of $2,600 alleged to be due and payable on a promissory note for $15,000 dated December 8, 1948, payable at $300 per month, principal and interest. Defendant Turgon admits his obligation on the note but claims the right of setoff for the $2,600 balance. Defendants had judgment in the court below and plaintiff appeals.

Plaintiff Sausser and defendant Turgon were equal partners in a furniture business in Chula Vista on December 8, 1948. On that date Sausser, without written notification to Turgon and in violation of the partnership agreement, attempted to sell his interest to defendants Barrack, and received from them the note in question.

Plaintiff filed a previous action against these same defendants in superior court of this county and state, numbered 150980, seeking reformation, declaratory relief, and recovery of the assets of the partnership he had previously attempted to convey to defendants Barrack. Judgment was entered June 21, 1949, and has become final In that judgment the court found that the attempted sale of Sausser to the Barracks conveyed nothing more than the right to participate in the partnership profits and that no partnership rights of administration or control or interest in partnership assets were conveyed. The court further found that defendant Turgon purchased from defendants Barrack what they had received from Sausser, and in consideration thereof bound himself to meet the obligations of the note.

In the present action the trial court further found that on said date of December 8, 1948, the books of the partnership were closed and showed Sausser's indebtedness thereon of some $2,600. It was further found that defendant Turgon regularly paid the $300 a month on the note until there remained a balance of $2,724 unpaid, and Turgon then tendered $124 and the asserted setoff of $2,600 in full payment. Sausser refused, declared the whole amount due and brought this suit. Sausser pleaded the statute of limitations against Turgon on the setoff. Judgment went for Turgon. [123 Cal.App.2d Supp. 950]