Franceschi v. Nardi

STURTEVANT, J.

The plaintiff commenced an action against the defendants to recover the amount due on two promissory notes. The trial court made findings in favor of the plaintiff and the defendants appealed.

I For several months prior to the first day of July, 1920, P. Nardi, his son-in-law, E. Franceschi, and F. Baccelli had been partners conducting a wholesale grocery business in San Francisco. On that date they agreed that the plaintiff might withdraw from the firm. Later, on the twenty-fourth day of July, 1920, he did withdraw. Following his withdrawal the two notes were given, one on September 27th and one on September 30, 1920. It was the contention of the plaintiff that the amounts represented by the notes were to be ascertained, and in fact were ascertained, by an accounting had and completed by Burt & Company, a firm of public accountants. The Burt accounting was completed on July 23, 1920. On the other hand, it was the contention of the defendants that the notes were accommodation notes

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and that the settlement between the plaintiff and the defendants was to be based on an accounting to be had after the twenty-fourth day of July, 1920, and that by the agreement of the parties the dissolution would not be completed until such accounting was had and that the plaintiff would be liable for his share of the losses that might have been incurred between the date of his retirement and the completion of such subsequent accounting. No question is presented to the effect that the theory of each party was not sufficiently set forth in the pleadings. Among other things the trial court found that an accounting was had and a report thereof made to the plaintiff and defendants on the twenty-third day of July, 1920, and prior to the plaintiff’s retirement; that that was the only accounting had between the partners; that plaintiff never consented to the taking of any other accounting; and that the plaintiff never promised or agreed to pay any losses which should be incurred in the said business after the date of his retirement.

As we understand the appellants, they claim that the trial court committed error by sustaining objections to the introduction of evidence to the effect that after the plaintiff retired from the firm it transpired that the firm had suffered heavy losses on certain uncompleted business ventures which were pending on the date that the plaintiff withdrew. Before proceeding it should be stated that there was not a particle of evidence in the record to the effect that any one of the contracting parties knew of any alleged loss at or prior to the dates on which the notes were executed. There was some evidence to the effect that at that time certain losses were anticipated.