Hayes v. Knerr

MARKS, J.

Appellant and respondent were copartners engaged in construction work. A written partnership agreement was executed in April, 1926, which, among other things, provided that all losses and profits resulting from partner,ship operations were to be shared equally by the partners. During October, 1928, they effected a voluntary dissolution of the partnership and attempted to arrive at an amicable distribution of the partnership assets. They were unsuccessful in reaching such a settlement and this litigation followed, which resulted in an accounting and a judgment in favor of respondent in the sum of $1795.58. Appellant has appealed from this judgment and the order denying his motion for new trial. Such order is not appealable (sec. 963, Code Civ. Proc.).

While appellant states various grounds for a reversal of the judgment, we need consider but one of them here, namely, the charging against him on the accounting of $10,000, the par value of participating certificates or bonds of the Arcady Apartment Hotel Company, originally a partnership asset, when these certificates did not have a market value of that amount. In his opening brief appellant thus states the question before this court: “If the bonds were to be charged to defendant at their face, or $10,000.00, then on the accounting plaintiff would be entitled to judgment against defendant for the sum of $1,795.58. But if chargeable at their market value, which the undisputed evidence shows is nothing, then the plaintiff would not be entitled to anything and the defendant would be entitled to judgment against the plaintiff in the sum of $3,204.42.”

After the parties had agreed to dissolve the partnership and while they were attempting to strike a balance on the partnership accounts, appellant gave to respondent three writings as follows:

“Los Angeles, Calif. Jan. 14th, 1929.

“For and in consideration of the contract entered into by Christ Thorne and John Hayes for brick and hollow

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tile work in Ford Garage Glendale cal. I agree to accept $10000.00 of Arcady Apartment Hotel Co. Certificates.

“H. E. Knerr.’’

“Los Angeles, Calif., Jan. 14th, 1929.