Gianelli v. Briscoe

HART, J.

The pleadings disclose that there is a dispute between the parties as to whether or not, for about fourteen years, there was a partnership existing in the saloon business in the city of Stockton, between Andrew Gianelli, plaintiff’s intestate, who commenced the action, and the defendant.

The complaint was filed on October 16, 1916; it was alleged that a partnership between the parties was formed in April, 1902; that it existed until July 2, 1916, at which time defendant took exclusive possession of the partnership property and has prevented plaintiff from having access thereto, and retains the income derived from said business. The prayer of the complaint was that said partnership be dissolved; that a receiver be appointed to take possession of the partnership property; that defendant be ordered to account to plaintiff for all moneys and property received by him, in running said partnership, since the second day of October, 1912; that plaintiff’s share thereof be paid to him by the receiver out of the proceeds realized from the sale of the property and for judgment against defendant for any deficiency.

[534]

On April 16, 1917, the trial court caused to be filed an “Interlocutory Decree,” the material portions of which are as follows: “This cause came regularly on for trial upon certain preliminary questions as to whether a partnership existed between plaintiff and defendant, and whether plaintiff was entitled to a dissolution of the same, and to an accounting thereof, on the 5th day of December, 1915, before the court sitting without a jury.” It was then stated that evidence was introduced and the matter was submitted to the court for decision; “and all and singular the law and the premises being understood and considered, the court makes and renders its interlocutory decree herein as follows: . . .

“That from the date of the aforesaid agreement of partnership up to the 2nd day of July, 1916, both plaintiff and defendant observed and carried out the terms and conditions of said agreement, when on the date last named the defendant, in violation of the terms and conditions of said agreement of partnership, took exclusive and adverse possession of said entire saloon business and all the property thereof, including all the proceeds and profits thereof since the 2nd day of July, 1916, and converted the same to his own use, and thereby deprived plaintiff of his right thereto.