Pritchard v. Mercantile Trust Co.

STURTEVANT, J.

The trial court sustained demurrers of the defendants to the plaintiff’s fourth amended complaint and refused the plaintiff permission to further amend, and thereafter a judgment was entered in favor of the defendants. The plaintiff has appealed from the judgment.

In her complaint the plaintiff alleged that she and Fred G. King did, in the year 1892, enter into a partnership

[329]

agreement. The business to be conducted by the partnership was that of dealing in mines and mining properties The plaintiff agreed to furnish moneys to the partnership from time to time, and the said Fred G. King agreed to devote his services as a mining engineer and as the business manager of the partnership business. It was further agreed that the profits of the business should be divided between the plaintiff and the said Fred G. King share and share alike. The plaintiff further alleges that she thereafter contributed $30,000 to the partnership business, and that she has been repaid $14,000 and no more. She alleges that the partnership made gross profits to the extent of $750,000, and that at the date of the death of Fred G. King the decedent left $300,000 in “tangible property of said partnership.” The plaintiff alleges that when she entered into the partnership agreement that Fred G. King had no moneys or properties of his own, but the pleading contains no allegation that after the year 1892 the said Fred G. King did not acquire moneys or properties in his capacity as an individual. She alleges that at the date of the death of King she did not have possession of any of the partnership property and none of it has since come into her possession, but there is no allegation whether at that time she had possession, or has since obtained possession, of any of the partnership books, records or papers. Except as hereinafter stated, there is no allegation that any one of the defendants holds any of the partnership property. The only allegation in that behalf is that on the date of the death of Fred G. King he had on deposit in the Crocker National Bank $18,183, and that the deposit was “the moneys and funds of the said partnership.” It is then alleged that after the death of King that Hazel H. King obtained letters of administration and had the deposit transferred from the Crocker National Bank to the defendant Mercantile Trust Company, and it is further averred that after demand made Hazel H. King and the Mercantile Trust Company have refused to pay over the amount of the deposit to the plaintiff. There is no allegation that the plaintiff has served or filed any claim against the estate of the decedent. The pleading contains no allegation to the effect that the plaintiff cannot get possession of all of the remaining portion of the $300,000 of tangible assets, nor is there any allegation that the partnership is