Briggs v. Kosich

STURTEYANT, J.

The plaintiff commenced an action against the defendant to dissolve a partnership alleged to be existing between the two parties and to obtain an accounting. The trial court awarded him a judgment and the defendant has appealed. The plaintiff’s complaint alleged the formation of a partnership, the commencement of business thereunder on the eighteenth day of August, 1921, and that the partnership conducted and managed a garage at 420 Twenty-third Street, in Oakland. The plaintiff further alleged that on the fifth day of January, 1922, the defendant sold the partnership business and refused to account to the plaintiff for any of the proceeds. Thereupon the plaintiff prayed that the partnership be dissolvel, that an accounting be had, and for other relief. The defendant came forward with an answer in which he admitted the creation of the partnership, and the sale of the business, but he denied that the sale was wrongful, or without the assent of the plaintiff, or that he held any of the proceeds in trust for the plaintiff. In addition to his denials the defendant set forth that on the sixteenth day of December, 1921, the plaintiff sold his interest to the defendant for the sum of $20, and an agreement on the part of the defendant that the defendant would assume and pay the partnership debts. The sale to the defendant was alleged to have been evidenced by a bill of sale which the defendant pleaded

in haec verba.

On the issues so made the parties went to trial. The trial court thereafter duly made its findings and ordered judgment in favor of the plaintiff in the sum of $550.

The appellant strenuously contends that the bill of sale to him should have been treated by the trial court as an absolute transfer

in praesenii,

whereas the trial court, on that subject, made findings as follows:

[404]

“That on or about the 16th day of December, 1921, plaintiff at request of defendant executed and delivered to defendant a bill of sale of all of plaintiff’s right, title, and interest in and to said garage business, said bill of sale being given by plaintiff to defendant for the purpose of allowing plaintiff to seek employment elsewhere and also for the purpose of enabling defendant, should the occasion arise, to consummate sale of said garage business for and on account of said copartnership. That the only consideration for said bill of sale was the sum of $20.