Arnold v. Loomis

MELVIN, J.

The complaint alleges that on May 1, 1899, plaintiff and B. E. Loomis were partners engaged in buying, selling, and dealing in real property in Contra Costa County, and that on that date they entered into an agreement to buy a tract of about twenty acres from one A. F. Pacheco and his wife. Certain details of the transaction not necessary for consideration here are also set out in the complaint, and the subsequent payment of one-half of the purchase price

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for the land by each of the copartners is alleged. There are further averments that the Pachecos, at request of the co-partners, conveyed the property to Mollie A. Loomis, wife of B. E. Loomis; that part of the property was afterwards sold by the copartners, the proceeds being used to discharge the liens of certain mortgages; that 8.66 acres of the land remained unsold, and that plaintiff had vainly demanded conveyance of a half interest therein from defendants. The prayer was for judgment decreeing that Mollie A. Loomis held the property in trust for her husband and for the plaintiff share and share alike, and that she be compelled to execute a conveyance of plaintiff’s interest to him, or to sell the land under order of court and distribute the proceeds in equal parts to the copartners. In their answer the defendants denied the existence of the alleged copartnership, and the payment for the land in the manner alleged, but averred that the property was purchased by Mollie A. Loomis with her separate funds. The statute of limitations was also pleaded. Findings and judgment were in favor of plaintiff. Defendants have appealed from the judgment and from the order denying their motion for a new trial.

The formation of a copartnership rests upon the testimony of Mr. Arnold alone. He did not prove any written contract of copartnership. The only writing in evidence which at all relates to the interest of plaintiff and B. E. Loomis in the land is as follows:

“San Francisco, March 4, 1901.

“This will certify that C. M. Arnold is entitled to one-half of the net proceeds of the eight and a fraction acres situated on Wild Cat Creek when sold. Said land being in Contra Costa County, and that said Loomis shall in like manner share in the commissions to be made in case of sale of the Horton tract or any portion of said land adjoining the 8.66 acres.