Bank of Italy v. Zerga

STURTEVANT, J.

The plaintiff commenced an action against the defendants basing its claim on a promissory' note. The defendants appeared and answered. A trial was had in- the trial court before the court sitting without a jury. The court made findings of fact in favor of tho defendants and from a judgment entered thereon the plaintiff has appealed and has brought up a bill of exceptions.

Plaintiff’s testator, James F. Fugazi, for many years had been a broker engaged in acting as the agent of different transportation companies. Before 1914 he had been associated

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with certain members of his family. Still later he became associated with one of the defendants, J. F. Bulotti. In the spring of «1920 Fugazi and Bulotti commenced negotiations with the defendant A. Zerga looking toward the formation of a contract of copartnership including the three. Prior to 1914 the Fugazi Company had been on the pay-roll of certain railroad corporations as agents drawing fixed salaries. During the federal administration of the railroads that arrangement did not exist. In May, 1920, Mr. Fugazi expected that the arrangement could be and would be renewed. Belying on those expectations he stated to the defendant Zerga that the paid contracts of agency would certainly be renewed in the immediate future. At the time of the negotiations the parties estimated a one-third interest, as the books then stood, as of a value of $5,000; but if the paid agency should be obtained there was a clear additional value of $3,000. Thereafter articles of copartnership were drawn up and executed by all of the parties. The document is not an unusual set of articles of copartnership. It recites that they have associated themselves “for the purpose of carrying on a steamship and general brokerage and exchange business and selling tickets, fares and other evidences of transportation from and between the city and county of San Francisco, state of California, and elsewhere, to and from other parts of the world passenger tickets, ...” The document does not purport to enumerate any of the clients of the copartnership. At about the same time the defendant Zerga executed and delivered his note to Fugazi and Bulotti in the sum of $5,000, payable within one year and bearing interest at six per cent. He also executed and delivered to the same persons his note in the sum of $3,000, without interest, payable May 2, 1922. The last-mentioned note is the subject of this action. In the complaint it is recited that as J. F. Bulotti does not consent to become a plaintiff he is made a defendant.