Scott v. Jungquist

[8]

RICHARDS, J.,

pro tem.

This is an appeal from a judgment in the defendant’s favor in an action wherein the plaintiffs sought an accounting and division of partnership assets and profits based upon an alleged partnership between the parties, relating to the subdivision and sale of certain real estate. The complaint, in the first paragraph thereof, sets forth an agreement alleged to have been made on July 27, 1912, whereby the parties entered into a partnership for the purchase, subdivision, and sale of the north half of section 11, township 10 north, range 12 west, San Bernardino B. & M., sharing equally the expenses, profits, and losses thereof. The second paragraph avers that on October 29, 1912, the parties standing in the relation of copartners as created by their first agreement, further agreed that they would purchase, subdivide, and sell the south half of the foregoing section upon the same understanding as to the division of expenses, profits, and losses. The complaint then proceeds to allege that the plaintiffs have performed their part of each of said agreements, but the defendant while collecting a large sum of money from the sales of said properties has failed, refused, and neglected to make or 'render an accounting thereof or to allow said plaintiffs access to the books of the copartnership in order to ascertain theystate of its accounts or to deliver to the plaintiffs their due proportion of. the proceeds of the copartnership transactions. The complaint not being verified, the answer of the defendant was in the form of a general denial. Upon the trial and in support of the averments contained in the first paragraph of their complaint, the plaintiffs presented a written agreement which fully supported said averments relating to the formation of the partnership for the purpose of acquiring, subdividing, and disposing of the north .half' of the said section of land. As to the introduction of this written agreement the defendant offered no objection, but admitted in open court the making of the same and that the lands therein referred to had been subdivided and sold according to its terms. The plaintiffs then undertook to establish the averments of the second paragraph of their complaint relating to the subdivision and sale of the south half of the section by showing the existence of a later oral agreement covering that portion of the section. To the offered proof of this oral agreement the defendant objected, upon the ground that it was oral and