Carpenter v. Hathaway

California Supreme Court Jan 5, 1891 No. No. 13765Published

Before: Gibson

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Holding. The court held that a written acknowledgment of a partnership agreement did not supersede the prior verbal agreement, and that the plaintiff was entitled to his share of profits from land sales as they occurred rather than waiting for the sale of all lands.

Issues

Whether a written acknowledgment of a partnership agreement superseded the prior verbal agreement.
Whether the plaintiff was entitled to his share of profits before all partnership lands were sold.
Whether the defendant was entitled to deduct interest, taxes, and expenses from the profits.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The writing itself does not contain anything inconsistent with the verbal agreement; it merely states the substance of it.”

“the court was justified in finding therefrom, in view of the contents of the writing itself, that it was given and received as a mere acknowledgment or memorandum of the verbal agreement.”

“it is clear that the plaintiff was not compelled to wait until all the lands were sold for his share of the profits.”

Synopsis

Contracts — Oral Agreement — Subsequent Memorandum — Merger. — Where an oral agreement has been made and partially performed, a writing subsequently given as a mere acknowledgment or memorandum thereof, and containing nothing inconsistent therewith, does not operate to merge or supersede an express provision of the oral agreement not included in terms in the memorandum.

Id. — Partnership in Lands — Time for Division of Profits. — An oral agreement for a partnership in the purchase and sale of lands to be acquired and sold in the name of one partner, with an express provision that the net proceeds of each sale were to he equally divided immediately after the sale, is not merged or superseded as to such provision by a subsequent memorandum, made after certain lands were acquired under it, which consisted of a mere written acknowledgment by the partner who had acquired the title to the land, that he had acquired it, and that it was understood and agreed that the other partner was to share equally in the net profits of the land, without stating the time of division.

Id.—Refusal to Account — Action for Dissolution and Accounting — Maturity of Oause of Action.—Upon the refusal of the partner holding the legal title to account after a sale by him of part of the partnership lands, an action will lie in favor of the other copartner for a dissolution of the partnership and an accounting of the profits of the land sold, and to establish his interest in all the unsold lands acquired under the verbal agreement.

Partnership — Accounting —Purchase of Land — Interest. —Interest, if not stipulated for in the partnership agreement, cannot be allowed on the purchase-money of the lands bought for the partnership.

Id. — Taxer and Expenses — Appeal — Objections for First Time.—■ It cannot be objected upon appeal that no allowance was made to tlis defendant for taxes and necessary expenses incurred in reference to the lands, the net profits of which were to he divided, if no evidence of taxes or expenses %vas offered nor claim made therefor at the trial.

Id. — Decree Establishing Interest in Lands — Future Taxes — Taxation. — No provision for future taxes need be made in a decree establishing the plaintiff’s interest in the partnership lands, the legal title of which was in the defendant, as the plaintiff’s interest is taxable to himself alone, and not to the defendant, after the date of the decree.

Gibson, C. Plaintiff brought this action to dissolve a partnership, for an accounting, and to establish his interest in certain lands acquired as partners, and obtained a judgment in his favor. Defendant appeals from the judgment, also from an order denying him a new trial.

The main facts, as shown by the findings, may be briefly stated as follows:—

About November 15, 1885, the plaintiff, who was then county surveyor of San Luis Obispo County, had special knowledge of the location and quality of certain large [436]tracts of vacant government land on the Car isa plains in that county, then offered at private sale for $1.25 per acre, but he was without means to purchase any of the land.

On or about that date he and the defendant, who was possessed of both means and credit, entered into a verbal agreement whereby .the plaintiff, upon his part, agreed’ to assist in pointing out, locating, and entering in the name of the defendant such portions of the lands as the latter might deem it advisable to purchase for their joint benefit; and the defendant, upon his part, agreed, in consideration thereof, to furnish a team and wagon for the inspection of the lands, to purchase the lands of the government, and furnish the necessary money therefor, and when so purchased, to take charge of and sell the same for cash, at a reasonable profit, as opportunities might occur; and after each sale to deduct from the proceeds of each sale the price paid to the government for the land sold, and pay over promptly to the plaintiff one half of the remainder.

Between the date of the agreement and the fifth day of June, 1886, the plaintiff and the defendant had, pursuant to the agreement, acquired 3,169 acres of land, the title to which stood in the name of the defendant. Upon the latter date defendant gave plaintiff a written acknowledgment to the effect that the defendant had acquired title from the United States government to 3,169 acres of land, and that it was understood and agreed that the plaintiff was to share equally with the defendant in the net profits of the land.

Thereafter, about August 15, 1886, and pursuant to the same agreement, the defendant acquired title to 640 acres of laud.

On April 11, 1887, while all the lands were still held under the agreement, the defendant sold and conveyed to one A. B. Taylor, a near relative of the defendant, 1,937 acres of land for the sum of two dollars per acre.

Carpenter v. Hathaway

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