Stowe v. Merrilees

PAULSEN, J.,

pro tem.

This appeal is taken upon the judgment roll alone. Briefly summarizing the findings, it appears that the defendant Merrilees, for some time prior to the fall of 1932, was mining upon certain property in Calaveras County under a lease from the owners thereof.

[219]

On November 15, 1932, he and the other defendants, Adams, Hopkins and Mayer, met in Los Angeles and executed limited partnership certificates pursuant to the provisions of section 2478 of the Civil Code, by the terms of Avhich the four partners agreed to carry on mining activities on said leased premises. On the same day, and in accordance Avith the terms of the certificates, Merrilees assigned said lease “unto the limited partnership”, Avhich immediately commenced work upon said claims. Merrilees thereby became the general partner and sole manager and the other defendants became limited partners. The latter never attempted to exercise control of the operations. On January 3, 1933, the certificates were filed in the clerk’s office and in the office of the recorder of Calaveras County, the principal place of business of the partnership. On March 7, 1933, plaintiff began furnishing labor and the service of a drag-line outfit to the partnership for use in said mining operations. For this he was not paid and the present action was brought to recover the amount due therefor. Plaintiff was given judgment against Merrilees and Adams, Avho had defaulted. The judgment further provided that plaintiff take nothing against Hopkins and Mayer, who were awarded their costs of suit. This appeal is taken by plaintiff from that part of the judgment in favor of Hopkins and Mayer.

It is conceded by appellant that the judgment must be affirmed if a valid limited partnership existed at the time the debts were contracted. He contends, however, that when persons who OAvn or have an interest in a mining claim commence work thereon a mining partnership is formed by operation of law and that a limited partnership cannot be created for such purpose. He asserts further that there was not a substantial compliance with the provisions of the code as to the filing and recording of the certificates. The points raised on the appeal appear never to have been decided in this state and the cases cited from other jurisdictions throw little light upon the problem.