Wilson v. Brown

SHIELDS, J.,

pro

tem.

This appeal arose from facts of which the following is a sufficient statement: Plaintiff and the defendant Brown were associated together in various real estate activities. While so associated a tract of land near Elsinore, in the county of Riverside, was called to their notice and they took an option for the purchase from its owners, each paying one-half of the cost of the option. The defendants Hursh and Clement were copartners engaged in real estate operations. Plaintiff interviewed the latter defendants with the view of having them purchase the Elsinore property held under the above option, and, after conferences and inspection in which all four of the parties participated, the defendants Hursh and Clement purchased the property with the understanding that they were to finance the purchase and subdivision of the tract and that Brown or Brown and plaintiff Wilson were to do the work of selling it. In consideration of their part in the business defendants Hursh and Clement were to have sixty per cent of the profits, and the defendant Brown, or the defendant Brown and plaintiff, according to the different contentions of the parties, was or were to have the remaining forty per cent. After the enterprise had been well entered upon, but before any of the property had been sold, defendants Hursh and Clement purchased all interest in the enterprise and the property, of the defendant Brown, and denied any interest of the plaintiff in the property, or any right on her part to participate in its sale, or the profits resulting therefrom.

[142]

She thereupon began this action to have it adjudged that a partnership had existed in the ownership of the Elsinore property and in the business of its sale; that the partnership had been dissolved; claimed that she was a partner therein; that her interest was a one-fifth interest, and asked for an accounting and a division of partnership assets according* to the respective interests of the partners. At the trial the court found the existence of the partnership; that the plaintiff was entitled to have it dissolved; that the defendants “did wrongfully, maliciously and without the consent of the plaintiff” apply property of the partnership to their own use; that the defendants Clement and Hursh “did conspire to defraud the said plaintiff of her rightful and proportionate share of said copartnership money and property” in the manner and to the extent set forth in a certain referee’s report, which was made a part of the findings of the court, and then proceeded to award the plaintiff a judgment against the defendants for $3,319.97 out of cash and contracts of sale received by defendants; a number of the lots of the partnership tract remaining unsold of the value of $5,230 and “certificates, bonds and deeds” out of securities and contracts taken by the defendant on account of sales of lots by them, amounting to $5,245, making a total judgment in favor of plaintiff of $13,794.97.