Bowman v. Carroll

TUTTLE, J.,

pro tem.

This is an action to establish a partnership in certain real estate transactions, and to secure an accounting. The court found the parties to be partners, and gave judgment against defendant in the sum of $10,-471.62, with interest. The appeal is taken from the judgment and two questions are presented—the insufficiency of the evidence and the allowance of interest upon the judgment from the date the complaint was filed.

The evidence shows that the first partnership contemplated by these parties was of a matrimonial character. The chief obstacle to its consummation was the fact that plaintiff was a married man. It was during the time they were “engaged” that their business partnership was formed. The court found that they agreed to buy and sell real property, each contributing one-half of the purchase price and receiving one-half of the profits. Title was to be taken in the name of defendant. These findings are unassailed. It appears, however, that defendant sold four out of five of the parcels purchased, and pocketed all the proceeds. This action followed. The trial court found plaintiff’s share of the net proceeds to be $10,471.62, and gave him judgment for that

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amount, with interest from the date the complaint was filed, to wit, January 29, 1924. He was also given an undivided one-half interest in one parcel which remained unsold, subject to a lien in favor of defendant, in the sum of $4,929 (one-half of defendant’s net investment therein).

The court found that the net proceeds received by defendant from the sale of four parcels of realty was $21,-886.32. From this amount the court deducted the amount invested by plaintiff, $3,316, and the amount invested by defendant, $4,259.08, leaving the net profit of $14,311.24. Plaintiff is given judgment for one-half of this, or $7,155.62, plus the total amount of his investment. It is now contended by appellant that she invested $943 more than plaintiff, and never received credit for that amount. There is no merit in this contention. By the judgment defendant was permitted to retain one-half of the net profits, $7,155.62, together with the amount of her investment, !$4,259.08. She was thus given credit for her total investment.