Dellapiazza v. Foley

Vanclief, C. to recover from defendants, as Action copartners in the business of mining, a balance of eight hundred and fifteen dollars and seventy cents alleged to be due plaintiff for labor performed for defendants at their request between the twenty-fifth day of December, 1890, and November, 15, 1891. The plaintiff had judgment for the full amount of his demand. As to defendant Foley, the judgment ivas by default upon his failure to answer. Bohannan alone appeals from the judgment, and also from an order denying his motion for a new trial.

It is not questioned that plaintiff was employed by defendants and performed the labor as alleged, nor that there was a balance of eight hundred and fifteen dollars and seventy cents due him for such labor on November 15, 1891; and it was admitted by appellant on the trial that defendants were mining copartners when plaintiff was employed, and so continued until July 2, 1891.

It was found by the court that on July 2, 1891, defendants sold and conveyed by deed the mine on which they had theretofore worked as copartners to a corporation, which thereafter had control of the mine and the wofk therein; and that the deed to the corporation was ■duly recorded July 10, 1891.

1. It is contended for appellant that upon the sale of his entire interest in the mine he ceased to be a partner, and consequently ceased to be responsible to plaintiff for the labor. thereafter performed, which appears to have been more than one-half of all the labor performed by plaintiff.

In answer to this the respondent relies upon section 2453 of the Civil Code, as applied to the further findings of the court to the effect that plaintiff had no notice of the sale of the mine to the corporation, nor that either [383]of the defendants had withdrawn from the copartnership, nor that the corporation had assumed control or management of the mine; that Foley continued to act as superintendent of the mine and work after the sale, precisely as he had done at all times before the sale; that appellant resided in San Francisco, and never personally participated in the working or management of the mine, but had intrusted the superintendency and management of the mine and the work to Foley, who employed the plaintiff; and that no payment had been made to plaintiff for any part of said work before November 12, 1891, when Foley, for the first time, audited and allowed plaintiff’s account, without notifying him that any part of the labor had been performed for the corporation, or that the corporation was responsible to him for any part thereof.