MacDonald v. Kuhn

PLUMMER, J.

Action for an accounting. Plaintiff had judgment and defendant appeals. On or about the nineteenth day of June, 1919, the plaintiff and defendant formed a copartnership for the purpose of packing fruit and vegetables. This partnership was evidenced by a written agreement, and the parties continued in such partnership, under such agreement, until about the 20th of- November, 1919, when the written agreement hereinbefore referred to was terminated by the execution of another written instrument. After this date it appears that the parties continued to do business as partners under an oral agreement. After the final dissolution of the partnership, it appears that the plaintiff paid a certain

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promissory note which, had been executed by the partnership, and in his complaint alleged the payment of the whole of said note out of his own funds, and instituted this action in the first instance to recover from the defendant one-half thereof. Thereupon the defendant and appellant herein by answer and cross-complaint demanded an accounting of the entire partnership, the prayer of the complaint of appellant being that plaintiff be required “to bring all of the books of the copartnership and a full, complete and correct accounting be made of all the business of said copartnership,” etc. An accounting was had, the matter was referred to a referee, testimony was taken, report and findings made by the referee, which report and findings were adopted by the trial court. By these findings the trial court ascertained and determined that theré was due from the defendant to the plaintiff on account of said copartnership the sum of $853.54, and judgment was entered in favor of the plaintiff and against the defendant accordingly. The matter is before this court upon the judgment-roll alone, and it must, therefore, be assumed that the findings are supported by the evidence. After the testimony had all been taken the plaintiff was permitted by the trial court to file an amended complaint asking an accounting, the same as had been prayed for by the defendant, and which accounting had been made, and setting forth in said complaint an additional sum as the amount due the plaintiff from the defendant to correspond with the proofs.

The first contention made by the appellant is that the referee and the court erred in not finding that the written agreement, dated November 20, 1919, executed by the parties hereto finally fixed and terminated all matters in controversy between the plaintiff and the defendant as to partnership transactions theretofore had. That this contention is without merit is apparent from a reading of the agreement itself. That agreement is as follows: