Loftus v. Fischer

Henshaw, J. This is an appeal by Behlow from the judgment dismissing his complaint in intervention in the above-entitled action.

In the original complaint he, with others, appeared as a plaintiff. Upon appeal to this court it was held that defendant’s demurrer to the complaint for misjoinder of parties, and improper joinder of causes of action, was well taken. (Behlow v. Fischer, 102 Cal. 208.) Upon the return of the cause to the trial court an amended complaint was filed, which omitted Behlow and other parties as plaintiffs, leaving the action to be prosecuted solely in the name of Loftus and his wife. In all other respects pertinent to this consideration the amended complaint was the same as the original. It contained the same averments of partnership, and the formation of the corporation to conduct its affairs. It averred that by agreement amongst the partners, their interests in the copartnership should be represented by certain shares of stock to them issued. Then follow the same averments of fraud practiced by Fischer upon Behlow and Long, by which it is asserted Fischer succeeded in purchasing from them their stock in the corporation. In short, with the omission of the parties plaintiff above noted, the amended complaint is, for all essential purposes, the same as the original, which was reviewed in [134]the 102d volume of our reports. None of the matters of fraud therein contained, and charged to have injured Long and Behlow, appears in any way to concern the interests or rights of the remaining plaintiffs. Their complaint is still for a dissolution of the copartnership. Whether or not Fischer has fraudulently acquired property of Behlow and Long is clearly of no concern to them.

Upon the filing of the amended complaint Behlow disappeared from the case as a plaintiff, but shortly after appeared again as an intervenor. His complaint in intervention is for the most part an exact transcript of the amended complaint. With the exceptions now to be noticed it is identical with that pleading. The first point of difference is this: The amended complaint charges that Fischer, in fraud of the plaintiffs Loftus, unlawfully caused to be issued to Behlow 19,200 shares of the stock, which afterward, and as a part of his design, Fischer fraudulently obtained from Behlow. The complaint in intervention is silent upon this, for Behlow’s contention is that the stock was rightfully issued to him, but was fraudulently obtained from him by Fischer.

The complaint in intervention charges, as does the amended complaint, that Fischer purchased Long’s five thousand shares through fraud, and still holds them. But the complaint in intervention in this regard goes further ’than the amended complaint. Behlow pleads additionally that Long for a valuable consideration has sold to him “ the said part of his interest in said co-partnership, represented by five thousand shares so fraudulently purchased as aforesaid by Jacob A. Fischer.” This allegation seems to have been designed to afford Behlow some standing as a partner. It is, of course, insufficient for that purpose, for, admittedly, the title to the stock is in Fischer, and Behlow’s action is for rescission and recovery of it. Behlow does not ask for a dissolution of 'the partnership, since his status as a partner was lost by the sale of his stock as decided on