Berson v. Ewing

California Supreme Court May 8, 1890 No. No. 12702Published

Before: Gibson

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Holding. The court held that a surviving partner has the capacity to maintain an action for malicious prosecution of a civil suit against the partnership, and that the statute of limitations for such an action begins to run only upon the favorable termination of the underlying malicious suit.

Issues

Whether an action for malicious prosecution of a civil suit is barred by the statute of limitations if brought within two years of the favorable termination of that suit.
Whether a surviving partner has the legal capacity to maintain an action for damages arising from a tort committed against the partnership.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The main cause of action is for the malicious prosecution of a civil action”

“the gist of the action is the malicious prosecution of an unfounded action”

“The power to settle gives full authority to the surviving partner to do everything that may be necessary to wind up the affairs of the partnership”

Synopsis

Malicious Prosecution of Civil Action — Attachment — Statute of Limitations. — The statute of limitations does not begin to run against a claim for damages for the malicious prosecution of a civil action upon an unfounded claim until the action is terminated, although an attachment may have issued in the action.

Id. — Malicious Attachment — Running of Limitation. — It is only where an illegal and malicious attachment is the gist of the action that limitation runs from the date of its issuance and levy; and this rule does not apply where the gist of the action is the malicious prosecution of an unfounded claim in which, so far as the record is concerned, a writ of attachment might have properly issued.

Partnership — Rights of Surviving Partner — Claim for Unliquidated Damages — Settlement of Partnership. — A surviving partner has power, under section 2461 of the Civil Code, to prosecute a claim for unliquidated damages in favor of the partnership; and under section 1585 of the same code, has power to settle the business of the partnership, which includes everything that may be necessary to wind up its affairs.

Id.—Construction of Code—“Debts” and “Claims” — Damages.— Though the word “debt” does not, in its legal sense, like the word “ claim,” include a demand for damages arising from a tort, they are used synonymously in section 2461 of the Civil Code.

Gibson, C. This is an action brought by plaintiff, as the surviving partner of the firm of A. Berson & Son, against all the defendants, except R. E. Corson, as partners under the firm name of Ewing, Plum & O’Brien, and said Corson, to recover damages for maliciously prosecuting another suit on a fraudulent claim, and obtaining a writ of attachment thereon, and causing the same to be levied upon the property of the firm of A. Berson & Son.

Two demurrers to plaintiff’s complaint were filed,—one by defendants Flood and Coleman, and the other by defendants Plum and Corson. Both were sustained, and judgment thereupon entered for defendants. From this judgment plaintiff appeals. The complaint is in substance as follows:—

[91]The plaintiff and A. Berson were partners doing business in the city and county of San Francisco, under the firm name of A. Berson & Son, until December 24, 1883 (?), when the said A. Berson died. On or about the first day of June, 1885, the defendants, other than Corson, who were then and still are partners under the firm name of Ewing, Plum & O’Brien, maliciously, and for the purpose of injuring A. Berson & Son, pretended to have a claim against the latter for a large amount of money, though they, Ewing, Plum & O’Brien, well knew that such claim was fraudulent and did not in fact exist. And in order to carry out their malicious intention to injure and oppress A. Berson & Son, they, Ewing, Plum & O’Brien, on the date last mentioned, conspired with defendant Corson, whereby the latter took an assignment of the fraudulent claim, and brought suit thereon in his own name, as assignee, against A. Berson & Son, in the superior court of the city and county of San Francisco. In furtherance of his conspiracy with Ewing, Plum & O’Brien, and further intending to maliciously injure A. Berson & Son, he, Corson, on the date last referred to, without cause, sued out a writ of attachment in the action brought by him, and caused the same to be levied upon tbe merchandise of A. Berson & Son, consisting of carpets, upholstery, and furniture in their store in said city and county, and placed a sheriff’s keeper in charge of the same. Thereafter, and before the trial of said action, the plaintiff caused the court, by its order, to bring in Ewing, Plum & O’Brien as proper and necessary parties to.the action. On or about June 14, 1887, the said action was tried by the court without a jury, and resulted in a judgment on the said pretended claim in favor of plaintiff, and against Ewing, Plum & O’Brien and Corson, by which judgment the attachment was dissolved. The bringing of said action and levying the writ of attachment issued therein damaged A. Berson & Son in their business and credit, and caused them to

Berson v. Ewing

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