Schurtz v. Romer

Fox, J. The action is indebitatus assumpsit, by the plaintiff Schurtz against the defendants Romer and Kerkow. Judgment for plaintiff, motion for a new trial denied, and this appeal is taken by the defendant Romer from the judgment and the order denying the motion for new trial.

On a separate appeal taken by the defendant Kerkow, 81 Cal. 244, this court held that the findings were suffi[476]cient to sustain the judgment. As to the defendant Bomer, there was a cross-complaint asking for affirmative relief, to which there was an answer, raising issues not directly raised under the answer of Kerkow. But as to those issues the court has also fully found, and we are still of opinion that upon all the issues the findings are sufficient to support the judgment. The case will therefore be considered upon the question of whether the evidence supports the findings, and upon the assignment of errors of law.

The facts in the case, briefly stated, are these: The plaintiff Schurtz and the defendant Kerkow were partners, carrying on a saloon and restaurant business at Los Angeles, known as the Vienna Bouffet, under the firm name of Kerkow & Schurtz. The partners fell out, and a suit was brought by Kerkow against Schurtz for a dissolution of the partnership, in which a receiver was appointed to take charge of the business and property of the partnership pending the litigation. While the receiver was in charge, the defendant Bomer opened negotiations, wdth the approval of Kerkow, to buy out the interest of Schurtz. This negotiation was carried on through a third party, Bomer not allowing himself to be publicly known in the matter until about the time of its consummation. It culminated in a parol agreement, or rather in a proposition, to buy the Schurtz interest at the price of four thousand dollars cash, and to assu'me the payment of one half the debts of the old firm, they being estimated at and not to exceed the sum of five thousand dollars. It does not appear, and the court does not find, that there was any representation or guaranty that the debts of the concern did not exceed that amount, but that was the limit of the amount for which Bomer was to assume the payment of one half.

Negotiations having reached this point, the parties all met to prepare the necessary papers and complete the transaction. A bill of sale was prepared in writing, in [477]