Raisch v. Warren

STURTEVANT, J.,

pro

tem.

This action was brought by the plaintiff, against the administrator of the estate of Charles A. Warren, deceased, and his heirs, for the purpose of securing an accounting arising out of an alleged partnership, and a judgment in plaintiff’s favor for such amount as might be found due.

Upon the trial of the case, and when objection was made to plaintiff and another witness, Buckman, being allowed to testify in support of their claim, plaintiff’s counsel having concluded that it was not within the power of the court to render a money judgment, waived that petition in the prayer, and the action proceeded merely for an accounting.

It was stipulated that if deceased was found to be a partner, the liability for contribution resting on his estate aggregated the sum of $182,792.14.

Judgment was for defendant, and plaintiff appeals.

It is the claim of plaintiff that Charles A. Warren, A. E. Buckman, and plaintiff entered into and formed a partnership for the purpose of bidding upon and securing certain contracts, among which was one from the United States government relating to what is known as the Truekee-Carson project of Nevada, a scheme for the diversion and conveyance of water from the Truckee River in the state of Nevada to the irrigable lands in the Truckee and Carson Valleys, situate in that state. After alleging the creation of the partnership and its purposes, the complaint proceeds to set forth the facts in connection with the submission of bids and of the securing of the contracts desired. It then recites the performance of the work at a substantial loss, and the fact that no accounting between the parties was ever had. At the trial it was shown that the plaintiff and his associate and assignor were for many years engaged in business as contractors and that they did an extensive business.' It was further shown that Charles A. Warren, now deceased, was engaged in the same business. The parties generally acted independently of each other, but occasionally they took contracts as a joint ad

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venture after the manner of partners. Early in 1903 "Warren concluded that it would be a more business-like way in proceeding in their joint adventures to form a corporation for that purpose. Accordingly, one was formed under the name of C. A. Warren & Company, in which each of the parties held one-third of the stock. Shortly after this arrangement was made the United States government solicited bids for certain irrigation work known as “The Truckee-Carson Project.” The newly formed corporation bid on this work. One of its bids was accepted, and a contract was entered into by it with the government. Shortly thereafter, and before much work was done, Warren, for certain reasons, desired to be relieved from the responsibilities connected therewith, and a contract was entered into by him with plaintiff and Buckman with that end in view. This agreement was destroyed in the fire of 1906, and its terms are disputed by the parties. Plaintiff claimed that it provided that since Warren was unable to take the active interest in the work that the importance of the project required, he should be allowed to withdraw from an active participation in connection therewith, and should have as his share of the profits twelve thousand five hundred dollars, to be paid out of the last sums received from the government on the contracts, but that no modification in relation to any losses that the parties might sustain was ever had. Defendants, on the other hand, contended that the agreement expressly exonerated Warren from the duty of making contribution in the event that the parties sustained a loss on their contract. At the time this agreement was made there existed another corporation known as the San Francisco Construction Company, of which Raisch and Buckman owned virtually all the stock, and in which Warren had no interest as partner, stockholder, or otherwise. In consideration of the twelve thousand five hundred dollars provided for in the agreement to be paid to Warren the contract of the Charles A. Warren Company was assigned to the San Francisco Construction Company. Thereafter this latter company furnished its own credit and all money necessary for a full performance of the contract, and received all payments due thereunder, and carried on all the accounts of the transaction on its own books. Later it entered into two other contracts connected with the same project in its own name. The facts further show that after receiving the assignment of the original contract plain