Leeper v. Superior Court

[737]

HART, J.

This is an application for a writ of prohibition to prohibit and restrain the defendants from causing to be sold and selling the certain properties described in the petition. An alternative writ or order to show cause was issued, and on the return day thereof the defendants filed both a demurrer and an answer to the petition.

It appears from the petition that on the thirteenth day of June, 1917, Herbert Shear, George Bonnefoy and F. R. M. Bloomer were, as copartners, the owners and in the possession of a wood and coal business in the city of Sacramento, known as the Pioneer Wood and Coal Company, and also a lime quarry, which was carried on under the name of the “El Dorado Lime Quarry,” said quarry being situated near the town of Shingle Springs, in El Dorado County; that on the said thirteenth day of June, 1917, said parties and one G. A. Starkweather entered into a written agreement whereby the former transferred to the latter all their right, title, and interest in and to all the properties mentioned upon the understanding and agreement that said Starkweather should and would, for the term of one year from the date of said agreement, conduct and manage said properties and businesses for the benefit of said copartners. The said agreement contains many details as to the manner of the management of said properties, and provides that at the end of the term of the same that Starkweather may, at his option, either form two separate and distinct corporations, the one involving or consisting of the wood and coal business and the properties thereof, and the other the quarry properties and business, or return the assets of said businesses remaining in his hands, after the payment of all debts and liabilities existing against either, to the above-named owners thereof or their assigns. It was further provided that Starkweather was to have sole and exclusive control of the properties and the businesses connected therewith for the term during which the agreement was to exist, and that he “shall have absolute discretion to make contracts, borrow money, buy and sell property, pay off indebtedness and to do any other act and thing that he may deem necessary, for the conduct of said business,” etc.

It is made to appear by the petition that, after the making of the above-mentioned agreement, Starkweather organized