Rowe v. Simmons

McFarland, J. J. — Judgment was rendered by the court below in favor of defendant Philip Simmons against the plaintiff.

The action is to dissolve an alleged partnership. In the original complaint, which was filed May 30, 1877, it was alleged that a partnership existed between the plaintiff and the defendants Joseph S. Simmons and Alonzo R. Simmons; that Philip Simmons was taken into the partnership in January, 1863, and remained a partner until about the 18th of May, 1872, “when the same was dissolved by the retirement therefrom of said Philip Simmons.” Sixteen years afterward, to wit, August 25, 1893, the plaintiff filed a supplemental complaint, in which he made the said Philip Simmons a defendant, and charged that he, Philip, was a member of the partnership. Philip filed an answer, in which he denied that he was a partner, or had been since the -day of May, 1872; and he also pleaded the statute of limitations, and that the alleged cause of action of the plaintiff had become stale, and therefore not enforceable in a court of equity.

The court found that the partnership was dissolved by the consent and agreement of all the copartners in May, 1872. It alsoTound that the cause of action set forth in the amended complaint against Philip Simmons was barred by the provisions of section 343 of the Code of Civil Procedure, and by laches; that the action as to said Philip should be dismissed, and judgment entered in his favor against plaintiff. And judgment was accordingly entered in favor of said Philip against the plaintiff to the effect that plaintiff take nothing by the action against said Philip, and that the latter have judgment for his costs and disbursements. The plaintiff moved for a new trial, and his motion was denied, [690]He appeals from the judgment and from the order denying a new trial. The defendant Alonzo Simmons also joins in said appeal.

It is' unnecessary to consider the findings of the court as to the statute of limitations and laches, because the finding of the court that the partnership was dissolved in May, 1872, and that since then the said Philip has not been a member of said partnership, is amply supported by the evidence. In May, 1872, the other partners bought out the said Philip, and all his interest in said partnership, and the property owned by the partnership, for fifteen thousand dollars, and gave said Philip two mortgages, one upon certain real property held by the partnership for nine thousand dollars, and a chattel mortgage for six thousand dollars upon the personal property he.ld by said partnership. The said Philip then went to the eastern states, and remained several years, and it was clearly proven by witnesses that all the remaining members of the firm declared that they had bought out the said Philip, and that the partnership was dissolved. Afterward, the said Philip, respondent herein, brought two actions to foreclose said mortgages. To these actions the other partners set up that they had been deceived as to the value of respondent’s interest in said partnership; that they had not had an opportunity to examine the books, and erroneously believed that the firm, at the time of “Philip’s retirement,” was owing him fifteen thousand dollars, but that, instead of that being the fact, he, the said respondent, was really in debt to the firm and to the other partners. They described themselves as his “ remaining partners,” and made no pretense that the partnership had not been dissolved. It is quite apparent from their answers that their defense simply was that respondent had fraudulently induced them to pay more for his interest than it was worth; and the whole theory of their defense to these actions was, that the partnership had really been dissolved. Neither the plaintiff herein no-r either of the other partners ever sought to set aside the dissolution