Shannon v. Calmus

FINCH, P. J.

The defendant Elsie P. Betts has appealed from the judgment herein given against the defendants jointly.

The complaint states five separate causes of action: the first, for moneys paid out and expended for the use and benefit of defendants; the second, for services performed by plaintiff; the third, for the reasonable value of the use of plaintiff’s automobile in the performance of such services; the fourth and fifth, for services performed by other persons, the claims for which were duly assigned to plaintiff; all at the special instance and request of defendants. The complaint does not allege that the defendants were partners or state the relation between them which would make them jointly liable. The plaintiff introduced evidence at the trial tending to show that the defendants were in fact partners.

[654]

The defendants, who filed separate answers denying the allegations of the complaint, testified that Mrs. Betts was not a partner of Calmus or interested in the enterprise in which he was engaged, but that she was merely his secretary, employed by him at a salary of $75 a month.

Calmus was engaged in the promotion of an enterprise to prospect for oil and for that purpose, through the efforts of plaintiff and others, leases were secured on more than 20,000 acres of land. Mrs. Betts was the owner of lands within the area to be prospected. There is evidence that she put large sums of money into the enterprise. One witness testified that both defendants stated “that they were interested in the proposition equally, she was furnishing the money, all the cash except some I got hold of, and some other money she wanted to borrow, and asked me if I would go see about borrowing some for her. . . . They asked me if I would go down tó Los Angeles and ask somebody to loan them $25,-000 on her ranch to carry these operations on. ... I went to various places to try to borrow money. ... I introduced Mr. Walker to the two of them. . . . He made arrangements with Mrs. Betts to come out to her house and look the property over, which he did, with several other men. ... As I understand it, he loaned her $10,000 or $15,000 on the ranch; 1 don’t know which the amount was $10,000 or $15,000.” The plaintiff testified: “Mr. Calmus told me that Mrs. Betts, in Mrs. Betts’ presence, that Mrs. Betts had an interest with him in this proposition. . . . And in the event of his death or if anything should happen to him, that Mrs. Betts was able to go right on with the plans, and he had so arranged things that there wouldn’t be any interruption at all. . . . Mrs. Betts was very active in helping him secure leases, and driving her car, and entertaining the guests that would come up from the south, at her residence, and the loaning of her tools and other equipment she had on her ranch, in the actual operations.” Another witness, who had furnished a considerable sum of money to be used in the enterprise, testified: “George M. Calmus frequently stated in the presence of Elsie P. Betts that she, Elsie P. Betts, was a partner in the oil leases . . . and. had been with him in the work from the beginning.” Funds used in the enterprise were deposited in her name and paid out on her personal checks. There was other evidence tending to show that Mrs. Betts was interested with Calmus in the enterprise, but enough