Taylor v. Nelson

THE COURT.

The complaint alleges that the defendant and the plaintiff entered into an agreement, by the terms of which the plaintiff was to pay and did pay one thousand dollars down on account of the purchase price of a certain piece

[682]

of real estate in Santa Clara County; that later plaintiff was to pay the sum of two thousand five hundred dollars, and the defendant the sum of three thousand five hundred dollars, whereupon the said defendant would secure a loan on the property of eight thousand dollars, making the whole purchase price, to wit, fifteen thousand dollars. That on and prior to May 1, 1912, the date fixed in the agreement of purchase and sale for the payment of the balance of the purchase price, plaintiff requested the defendant to carry out his part of the contract, but the defendant refused to do so and repudiated the whole transaction. This suit is for damages to recover the sum of one thousand dollars for breach of the contract, plus a small item not questioned if the plaintiff is found to be entitled to recover a judgment in this action.

The transaction here involved is not, as asserted by defendant, a partnership transaction requiring, for the adjustment of the difficulties between the parties, a suit in equity for dissolution and accounting. It is true, according to the allegation of the complaint and the findings of the court, that the parties contemplated a partnership. While, in view of the arrangements between the parties, it may be said that a partnership was initiated by the plaintiff’s payment of one thousand dollars, it certainly cannot be said—the defendant having failed to carry out his part of the contract and having repudiated the same, that the partnership was ever launched, created, or consummated. Hence it follows that the present action for breach of the contract will lie.

(Powell

v.

Maguire,

43 Cal. 11;

Prince

v.

Lamb,

128 Cal. 120, [60 Pac. 689] ; 30 Cyc. 358-465; 15 Cyclopedia of Pleading and Practice, 1045;