Adam v. Obarr

OGDEN, J.,

pro tem.

This is an appeal from a judgment dissolving a partnership, ordering an accounting and directing the payment of debts, sale of assets and distribution thereof among the copartners.

The action was brought by the respondent, Adam, who alleged in his complaint, in so far as it concerns this appeal, that on March 1,1922, by oral agreement, he and the appellant Obarr entered into a partnership for the purpose of carrying on a grocery and meat business known as the California Market and Grocery Company at Santa Maria, California; that it was agreed that each partner would share equally in the profits or losses; that neither partner would receive a salary; that both partners would devote all of their time and services to the partnership, and that upon the liquidation thereof each partner should receive óne-half of the money of the partnership and in addition a return of the money and property invested by him therein. It was further alleged that pursuant to said agreement both parties contributed certain moneys and property to the partnership; that during the years 1924, 1925 and 1926 respondent contributed to the partnership cattle and calves of the approximate value of $17,000, as well as other property, for which he was not given credit; that appellant had withdrawn from the partnership approximately $5,000 more than respondent and in addition thereto withdrew without authorization a salary of $65 per week for a long period of time, and that appellant refused to reimburse the partnership for the amounts so wrongfully withdrawn or to credit respondent for the cattle so delivered. The complaint prayed for an accounting, and for the dissolution of the copartnership.

In his answer appellant.denied that, the agreement was as alleged by respondent, and alleged that it provided for the purchase by respondent from appellant of a one-half interest in the business, for which respondent was to pay the appellant the sum of $9,000, representing one-half of the amount then

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invested in the business by the latter; that respondent had breached this agreement by his failure to pay any part of the purchase price and by his failure to devote his entire time to the business. The answer then alleges the contribution by respondent to the partnership of various items of money, cattle and other property and the contribution by appellant, in addition to the $18,000 originally invested, the sum of $3,000; that taking into consideration the contribution of each partner as alleged and the profits and withdrawals of each partner, the net result was that at the close of the year 1929 the investment of each partner in the business was approximately equal. He further alleged that respondent had been given credit for all cattle delivered by him or, if not, such credit should be made. The salary withdrawals are admitted, but alleged to have been authorized by agreement of the partners, but it is denied that appellant withdrew any sum in excess of the withdrawals of respondent. The answer further alleges the necessity for an accounting and joins with the complaint in a prayer therefor, and for the dissolution of the partnership.