Auditorium Co. v. Barsotti

RICHARDS, J.

This action was commenced by the plaintiff against the defendants, who were alleged to be partners doing business under the firm name and style of the “Western Metropolitan Grand Opera Co.,” to recover the aggregate sum of $9,739.86 upon three separate counts, the first and second being upon accounts stated for the sums of $2,490.34 and $4,949.52, respectively, and the third count being for money had and received in the sum of two thousand three hundred dollars. The defendant D’Avigneau defaulted, and the action as to him was later dismissed. The defendants Barsotti and Patrizi answered separately, each denying that Barsotti was at any time a member of the alleged copartnership, but each alleging that the defendants Patrizi and D’Avigneau constituted its only members. The only issue presented upon this appeal is as to whether the defendant Barsotti was in fact a partner of his codefendants. The trial court found that he was not and rendered judgment accordingly in his favor. The plaintiff and appellant herein urges that the evidence is insufficient to support the findings and judgment of the court in this regard.

'A review of the record in the case convinces us that the evidence is sufficient to fairly establish the following facts: During the year 1913 the defendants Patrizi and D ’Avigneau were interested in the production of grand opera. In the spring of that year the former of these discussed with the officers of the plaintiff the matter of the organization of a company for the purpose of playing grand opera engagements in San Francisco and Los Angeles during that year. To that end Patrizi became associated with D’Avigneau, and on August 13, 1913, an agreement in writing was entered into between the officers, of the plaintiff and Patrizi and D’Avigneau as parties of the second part by which the former were to advance to the latter the sum of seven thousand five hundred1 dollars on or before August -31, 1913, upon the express condition that the latter should secure on or before said date

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the additional sum of twelve thousand dollars, which combined sums were to be used for the purpose of organizing and operating an opera company to fill said engagements. Patrizi and D ’Avigneau endeavored to raise this sum, said sum to be supplied by them by subscription, but failed in this endeavor, whereupon D ’Avigneau suggested to Patrizi that he attempt to obtain the money from his friend Barsotti. They discussed between themselves the inducement apparently in the way of a bonus which should be offered to Barsotti to furnish this money, and agreed to offer him one-third of the profits of the San Francisco and Los Angeles engagements. Patrizi went to Barsotti with the proposition and induced him to advance the sum of ten thousand dollars.' Barsotti and Patrizi both testify that this was to be an advance to be repaid out of the first profits earned in these engagements. Thereupon Patrizi drew up the document which is mainly relied upon by the appellant herein as being the articles of the alleged partnership, which document was signed by Patrizi, D’Avigneau and Barsotti. It recited that it was the intention of the parties to it to establish an operatic organization to be known as the “Western Metropolitan Opera Company,” to give an opera season in San Francisco and in Los Angeles, and that it was agreed by them that “each will hold one-third interest in said enterprise, and that if any profits will be derived frorq same at the end of the contemplated season, said profits are to be divided equally among said three parties.” As to the part which Barsotti was to perform in this undertaking, it was agreed: “Dr. C. Barsotti will help Messrs. Patrizi and D’Avigneau in securing a certain sum of money of about ten thousand dollars by a note to. be signed also by E. Patrizi and E. D’Avigneau, and to furnish certain bonds and guarantees which may be needed to help the work and development of the enterprise. ’ ’ The evidence further shows that after the execution of this agreement, Barsotti did pledge his credit at a certain San Francisco bank by which the sum of ten thousand dollars was realized, and that thereafter the two defendants Patrizi and D ’Avigneau went ahead with the execution of the contract which they had entered into with the plaintiff’s officers. The evidence sufficiently shows that as to the transactions between these two defendants and the plaintiff through its officers Barsotti was never consulted, nor his consent or signature asked or given in the making or