McHarg v. Pickford

LANGDON, P. J.

This is an action for an accounting of an alleged partnership business. After the trial of the action the plaintiff died and the executor of his last will and testament has been substituted in the record in his place and stead. The original plaintiff, after alleging that he and the defendants were partners in the business of buying and selling real property in Los Angeles, described certain parcels of land and alleged that they were purchased by the partnership after the last accounting between the parties. These parcels are designated as A, B, and C. It is alleged in the complaint that the defendants have filed actions against the plaintiff with reference to the first two parcels, to recover plaintiff’s

pro rata

share of amounts paid by defendants in discharging mortgages; that the defendants received and accepted on behalf of and for the benefit of said partnership a deed to parcel G and, thereafter, with

[300]

out the knowledge or consent of plaintiff, sold said parcel to third parties and received therefor a sum in excess of its cost to the said partnership and have failed and refused to render an account of said transaction to plaintiff.

Plaintiff alleges that an accounting is necessary between the parties and prays that the court so order and that the partnership be dissolved.

The defendants by their several answers clearly were attempting to deny each and every allegation of the complaint. Their attempts violated the rules of logic and of pleading, the answer containing numerous negatives pregnant and denials in the conjunctive. At the trial plaintiff relied upon this, insisting that the substantial allegations of the complaint had been admitted. The trial court allowed an amended answer to be filed, over the protest of the plaintiff, but even after attention had been focused upon the fallacies of their pleadings, defendants filed amended answers which only partially corrected the errors of the original answers.

While realizing that there is small, excuse indeed for these fundamental and repeated breaches of well-settled rules, nevertheless we are disposed to consider cases on their merits and to avoid, if possible, reversing judgments upon technicalities. That course is open to us here, we think, because the defendants made no further objection to the pleadings, but tried the case as though all the allegations of the complaint had been put in issue by the answers. Evidence in support of such allegations was introduced by plaintiff and evidence in opposition thereto was introduced by defendants without objection.