Quackenbush v. Sawyer

Department No. 1, McKee, J.: We do not regard the action in this case, as does counsel for the appellant, as an action for the settlement of a partnership account.

In substance it is alleged, in the complaint in the case, that the parties had severally advanced certain sums of money in purchasing the “ circus property ” mentioned in the complaint; that they then entered into an. agreement that the defendant should take and keep possession of the property, and cause it to be used and employed by circus companies or managers for the joint benefit of himself and the plaintiff in equal shares; that in using or employing it for this purpose, he should make provision that the “ rent or compensation ” receivable for the use of the property should be first paid to him, and that, upon collecting or receiving such “ rent or compensation,” he should account therefor, and pay it over every month to the plaintiff, until the money which plaintiff had advanced for the purchase of the property, and interest thereon from the time of its advancement, should be paid; and after such payment, defendant should account for and pay over to the plaintiff one-half of said rent or compensation. And it is charged that the defendant received as “ rent or compensation ” for the use of the property, large [440]sums of money, of the amount of which plaintiff is ignorant, and he prays for an accounting and division of the property.

Each, allegation of the complaint is specifically denied by the answer, and a special defense is also set up. The proofs on the trial establish these facts: That in June, 1873, one Conklin was owner of the “ circus property ” mentioned in the pleadings, and manager of a certain troupe or company of circus performers ; that by a bill of sale Conklin transferred the property to the parties in this action, as security for the payment to them of certain sums of money, which they had severally advanced to him. That they agreed with each other that defendant should take possession of the property, and transport it from place to place in the State of California, upon a performing tour, and receive or collect the income of the performances, and apply it, first of all, to the payment of money advanced by the plaintiff, and then to the payment of what he himself had advanced to Conklin.

Pursuant to this agreement, defendant took possession of the property; and, being a teamster, made a contract with Conklin for the transportation of the property, during the summer season of 1873, from place to place in the State of California, on a performing tour, under the direction of Conklin. Performances were given in various interior towns and cities of the State, at which the defendant collected or received $4,200; but he has failed and refused to account for or pay to the plaintiff any portion thereof. Upon these proofs the Court below rendered judgment against the defendant for the amount of money advanced by the plaintiff to Conklin, and interest thereon from the date of its advancement.