Walsh v. Mckeen

California Supreme Court Apr 17, 1888 No. No. 11084Published

Before: Belcher

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Holding. The court held that a complaint stating facts sufficient for an accounting is not fatally defective even if originally framed as an action at law, and that trial courts have discretion to allow amendments to the prayer for relief to ensure justice. Furthermore, a partnership accounting action may be maintained even if all assets have not been collected or all debts paid at the time of filing.

Issues

Whether a complaint is demurrable if it states facts for an accounting but prays for legal relief.
Whether a trial court may permit an amendment to the prayer of a complaint to change the form of relief sought.
Whether a partnership accounting action is premature if partnership assets remain uncollected or debts remain outstanding.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The complaint stated all the facts necessary for an accounting, and when the prayer was amended the action ceased to be one at law.”

“Applications to amend pleadings are addressed to the discretion of the trial court, and should be allowed at any stage of the trial when necessary for the purposes of justice.”

Synopsis

Pleading — Practice — Amendment—Demurrer. — An error in overruling a demurrer to a complaint is cured if the plaintiff subsequently amend his complaint in the particular to which the demurrer was directed.

Id.—Discretion — Amendment at Trial.—It is within the discretion of the trial court to permit the pleadings to be amended during the trial, when necessary for the purposes of justice.

Id.—Prater for Relief — Amendment from Legal to Equitable.— Where a complaint praying for legal relief states a cause of action entitling the plaintiff to equitable relief, the court may on the trial permit the prayer to be amended, so as to ask for the appropriate equitable relief.

Partnership—Accounting bt Survivor — Completion of Liquidation. — It is not necessary that a surviving partner should have completed the liquidation of the partnership affairs before an action for an accounting can be maintained against him by the personal representative of the deceased partner.

Belcher, C. C. This is an appeal by the defendant from a judgment entered against him, and from an order denying a new trial.

The findings cover all the issues and are not assailed, but it is claimed that errors of law were committed by the court, for which a new trial should be granted.

In the complaint it is alleged that Thomas Walsh, the plaintiff’s testator, and the defendant entered into partnership for the purpose of constructing a sewer in the city of San José; that while the sewer was being con[520]structed Walsh died, and defendant afterward completed the work; that about the time they commenced to construct the sewer Walsh advanced $1,100 for the purpose of carrying on the work, and that the money was delivered to and used by defendant for that purpose; that defendant had received on account of the partnership business the sum of $20,505.50, and had paid out and disbursed the sum of $19,632.50, and that all the debts of the partnership had been paid; that plaintiff had demanded of defendant payment of the $1,100, and one half the balance of the proceeds of the partnership, but defendant had not paid the same to the plaintiff as executrix, or otherwise.

As originally filed, the prayer of the complaint was for judgment against defendant for the sum of $1,536.50, with interest, and costs of suit.

The defendant demurred to the complaint upon the groúnd that it did not state facts sufficient to constitute a cause of action, and that it was ambiguous and uncertain, because it did not appear therefrom but what Walsh in his lifetime received all moneys due or coming to him, or which he was entitled to receive, from the partnership business.

The demurrer was overruled, and defendant then answered, and, among other things, denied that Walsh at any time advanced the sum of eleven hundred dollars, or any sum, for the purpose of commencing and carrying on the work of constructing the sewer, and further denied that all the debts of the partnership had been paid or satisfied. And he alleged that the cost and expense of constructing the sewer exceeded the contract price, and that there was not then and never had been any money or proceeds of the partnership in his hands or possession; and further, that there had never been any accounting or settlement of the partnership affairs with the plaintiff.

During the progress of the trial the plaintiff was per

Walsh v. Mckeen

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