Meis v. Collins

GRIFFIN, J.,

pro

tem.

The record indicates that a partnership was formed between plaintiff Chas. Meis, defendant E. Collins and one Angelo Galianos in July, 1930, in Imperial County, for the purpose of carrying on a business known as the Home Bakery; that thereafter Galianos died and the other two partners carried on the business as surviving partners, paying certain claims for funeral expenses of the deceased partner; that no accounting was had between the surviving partners to determine their respective interests; that the sole contribution of Galianos had been his personal services rendered to the partnership prior to his illness; that on the first day of Sep

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tember, 1930, defendant Collins sold to one Michael Salmen, co-defendant, a one-third interest in the business; that thereafter the three parties entered into a new partnership agreement in writing and have carried on the business under the name and style of Home Bakery, E. Collins, Proprietor; that defendant Collins received as consideration for the one-third interest the sum of $3,500, which sum, the plaintiff claims, defendant Collins failed, neglected and refused to account for to the partnership and kept said sum to his own use in fraud of the right of plaintiff Chas. Meis.

Further claim is made that the original surviving partner had from the beginning assumed the management of the business and handled all of the money of the partnership and failed to keep correct accounts and had used the partnership money in his private business and speculation.

The two defendants answer jointly and admit an agreement of sale, one to the other, for $3,500 of a third interest in the business, after the death of the first partner, but deny that plaintiff has any interest in that sum; and deny generally all accusations of misappropriation or mismanagement. Both complaint and answer pray for a dissolution of the partnership and an accounting.

A petition for the appointment of a referee was set for hearing on the tenth day of March, 1933, and on that day the attorney for plaintiff was dangerously ill. Another attorney appeared for him and a tentative agreement was entered into whereby Leonard Buster was appointed referee for the purpose stated in the petition. Plaintiff Meis subsequently refused to agree to the appointment of Leonard Buster and accordingly would not stipulate to his appointment.