Boyce v. Gordon

COOPER, P. J.

This action was brought to recover $487.50, being the value of certain lumber alleged to have

[772]

been furnished to defendant Patrick Gordon, to be used, and which was used, in the construction of a building for said Gordon, and to recover the further sum of $129, for certain mill work alleged to have been used in the erection and construction of the same building for said Gordon. The first item was included in the first cause of action as stated in the complaint, and the second in what is denominated the second cause of action. The ease was tried- before the court with a jury. At the close of the evidence, after being instructed by the court, the jury returned a verdict in favor of the plaintiff and against defendant, Patrick Gordon, for the value of the lumber as alleged in the complaint, $487.50, and upon this verdict judgment was entered. Defendant Patrick Gordon prosecutes this appeal from the judgment and from the order denying his motion for a new trial.

It is first urged that the court erred in admitting in evidence a written assignment made by Mary J. Bates of all her right, title and interest in and to the $487.50 due the Boyce Lumber Company for lumber furnished to Gordon. The evidence shows that the firm or copartnership known as the “Boyce Lumber Company” was at all times referred to in the complaint composed of two copartners and two only, to wit, the plaintiff and Mary J. Bates. There is no question here as to the copartnership debts, or as to any equities between the members of the firm. We then have the simple question as to two persons owning a claim as copartners, and one assigning her interest to the other. We see no reason why the partner, who thus becomes the sole owner, cannot maintain an action upon such claim.

(Baxter

v.

Hart,

104 Cal. 344, [37 Pac. 941].)

The court did not err in sustaining the objections of plaintiff’s counsel as to questions asked by appellant’s counsel of plaintiff as to whether or not the copartnership had filed a certificate with the county clerk, stating the names and places of residence of the members of the copartnership, as required by the code. The assignee of a partnership debt, even though a partner, may maintain an action to recover upon such debt, and this even though the partnership would not have been allowed to maintain such action by reason of not having 'complied with the law by filing its articles of copartnership.