Menotti v. Marchesi

The action from which this appeal arises was filed on the sixth day of June, 1921, the complaint alleging that on June 1, 1920, the parties entered into an oral agreement of copartnership in a business known as "Menotti's *Page 50 Buffet," in the city of Venice; that the defendant agreed to and did act as manager of the business, for which he was to receive $125 per month; that the plaintiff was the owner of the premises upon which the enterprise was situated, which she leased to the copartnership at rentals varying from $150 to $350 per month, in the winter and summer seasons, respectively, and that each should share equally in the profits. It is further alleged that there was no agreement as to the duration of such partnership, but that on March 29, 1921, plaintiff formally notified defendant of its termination, and offered to purchase his share at cost, and to assume the rent for the month of April; and that again on June 1, 1921, the plaintiff notified defendant that the latter having claimed that the partnership had been created for a period of one year, said partnership had terminated on March 29th, or was terminated on June 1, 1921, and, in either case, demanding its termination, and offering to purchase defendant's share at cost. The reasons for such notice were alleged to have been the assumption by defendant of control of the business and the assets and books thereof, to the exclusion of the plaintiff, and mismanagement, and refusal to account. The plaintiff prayed for the appointment of a receiver, dissolution of the partnership from the sixth day of June, 1921, sale of the assets, payment of the obligations, and distribution of remaining assets.

The defendant answered, admitting the material facts as to the partnership agreement, but denying the existence of any stipulated date for its termination, and denying the alleged derelictions on his part. He also denied all of the asserted grounds for appointment of a receiver, and averred that such action would endanger the property and goodwill of the business and entail financial loss to the parties.

Issues having been joined, further minutia of which it is unnecessary here to detail, a trial was had before the court, without a jury, and evidence was introduced on July 18, 19, and 22, 1921, but no judgment was rendered. As a result of the hearing an accountant was employed, who rendered his report on August 2, 1921. On the following day the plaintiff filed an order for the dismissal of the action, and on October 4th she filed another such order, neither of which was signed by the court or acted upon further. *Page 51

On the last-mentioned date the defendant filed affidavits wherein he claimed that the total merchandise of the copartnership, as shown by the auditor's report, appeared to be of the value of $1,534.47, and the cash on hand $1,707.76; but that he had discovered an apparent transfer of $2,010.83 from the partnership bank account to plaintiff's private account, without agreement, which had not been included in the auditor's report, and which remained unsettled in the final adjustment based thereon. Fraud was not alleged in this connection. He asked for further hearing, adjustment as to this additional amount, and judgment. On November 10, 1921, the court, over plaintiff's objections, heard the evidence of defendant, upon the conclusion of which his motion was denied upon the ground that his evidence was insufficient to "upset the settlement" theretofore agreed upon. Plaintiff thereupon, in obedience to a direction from the court, executed and prepared a third order for dismissal of the action, which was then signed by the judge and filed.