Lanpher v. Warshauer

RICHARDS, J.

This is an appeal from a judgment against the plaintiff and from an order denying a new trial in an action upon an alleged partnership agreement, and for an accounting and settlement of the partnership affairs. The principal question before this court is as to whether such partnership actually existed; and our conclusion upon that issue

[458]

will dispose of the other questions presented by the record on appeal.

The plaintiff’s complaint set forth in substance that he is a builder and contractor by occupation, and that in the latter part of 1907 he and the defendant B. F. Warshauer, associated themselves together for the purpose of engaging in the building business, and dividing its profits and losses between them in equal shares, the plaintiff to give his personal attention, skill, and labor to the firm, and the said defendant, to furnish it with such capital as it should require; that the business of said firm was to begin by the erection of a house upon a portion of a lot owned by the defendant in Berkeley, which house, when erected, was, with such portion of said lot as was necessary, to be sold in the open market, and after the defendant had been reimbursed for the price of the land and such sums as he had expended in the cost of material for the building, the remainder was to be equally divided between them; that plaintiff performed his part of this agreement, but that after the house was completed the defendant refused to sell the same, but on the contrary, occupied it as his dwelling, and declared a homestead upon it, and also refused the plaintiff an accounting or other recompense for Ms work and labor expended upon the premises.

The answer of the defendant denies the existence of the agreement in the terms averred by the plaintiff, but alleges that there was an agreement between the parties differing in some of its details, but otherwise substantially the same as that stated by the plaintiff, in the respect that the house when erected was to be sold and the profits or losses divided equally between the parties. The defendant then proceeded to aver that the plaintiff during the course of the erection of the building had abandoned work upon it and thus forfeited whatever rights he had in the premises. He also presented a cross-complaint for damages for the plaintiff’s alleged abandonment of the building before its completion. The existence of a partnership between the parties was also specifically denied in the answer.