Krasky v. Wollpert

COOPER, C.

This appeal is from the judgment and from certain orders afterwards made in regard thereto.

■ The action was brought to recover upon a promissory note for seven hundred dollars, dated November 1,1897, due upon demand, with interest from date at the rate of one per cent per month, made by “ H. G. Krasky,” to plaintiff. It is alleged in the complaint that the defendants are, and were at the time of the execution of the note, copartners under the firm name of V H. G. Krasky,” and that as copartners they made and delivered said note to the plaintiff.

■ The answer of defendant Wollpert denied that the defendants were ever copartners, and alleged that said Wollpert never at any time executed or delivered said note.

The .principal issue made by the pleadings was as to whether or not the defendants were copartners, as alleged in the complaint. The court found: “That on the first day of November, 1897, and prior thereto, the defendants, H. G. Krasky and Charles Wollpert, were, and are, copartners in business at the city and county of San Francisco, state of California, under the firm name of H. G. Krasky; that as a member of the firm of H. G.' Krasky and Charles Wollpert, copartners, the said H. G. Krasky made, executed, and delivered the promissory note set out in the complaint to the plaintiff in this action for a good and valuable consideration, and that no part of said note has been paid, except the sum of one hundred dollars on account thereof.”

■ It is practically conceded that the note was made and delivered to plaintiff, and that it has not been paid, but it is earnestly contended that the evidence is insufficient to justify

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the finding of the court that the defendants were copartners at the time the note was executed, or that they ever were such copartners. We have carefully examined the evidence and think it justifies the finding. It is only in rare and exceptional cases, where there is an entire absence of evidence, or where it is of such an unsubstantial character that it will not justify the conclusion reached, that we feel authorized to set aside the finding of the court below. In this case there is evidence which, if true, shows the defendants were copartners. Partnership is defined by our code as “ the association of two or more persons for the purpose of carrying on business together, and dividing its profits between them.” The defendant Krasky testified that on November 1, 1897, he and his co-defendant made an agreement to carry on business together and divide the profits; that the business was to be -run by Krasky, under the firm name of “H. G. Krasky,” and that he was to run the business and receive from the firm twelve dollars per week as wages; that he did so run the business, consulting, from time to time, with his co-defendant; that he employed men and fixed their compensation; that he borrowed $1,775, and put it into the firm, which amount includes the amount for which the note in this case was given; that he borrowed $900 from Mrs. Schriner, which was part of the $1,775;- and that he told his co-defendant that he had borrowed this money and put it into the business. When the note was presented to defendant Wollpert for payment, he told the witness Ash that the note was all right, and he paid one hundred dollars upon it and promised to pay the balance.