Kennedy & Shaw Lumber Co. v. Taylor

VANCLIEF, C. This is an action to recover from the defendants, as copartners, the sum of $1,815.59 for lumber sold and delivered to them by plaintiff. The defendant Lund failed to answer, and his default was entered. The other defendants answered, denying all material allegations of the complaint. The cause was tried by the court, and a joint judgment was rendered against all the defendants. The defendants Taylor and Somervell appeal from the judgment, and from an order denying their motion for a new trial.

The principal point made by appellants is that the finding by the court that the defendants were copartners is not justified by the evidence. On June 18, 1889, the defendant Lund entered into a written agreement with Antonelle and Doe, whereby he agreed to do certain work on section 8 of the seawall along the waterfront of San Francisco, and to furnish all materials therefor, and to purchase the lumber needed for the performance of the agreement on his part from the plaintiff. The defendants Taylor and Somervell executed to Antonelle and Doe their bond, guaranteeing that Lund would perform his contract. On June 20, 1889, Lund assigned his agreement with Antonelle and Doe to Taylor and Somervell, and at the same time the following written agreement was executed between Lund, Taylor and Somervell:

“This agreement, made and entered into by and between Jos. W. Taylor and W. S. Somervell, parties of the first part, and E. Lund, party of the second part, all of the city and county of San Francisco, state of California, witnesseth : The parties of the first part agree to furnish, as required, all moneys necessary to fulfill and carry out all the conditions of that certain contract and agreement made and entered into by and between Antonelle and Doe and E. Lund (party of the second part therein), dated June 18, 1889. For such moneys so advanced and paid, the party of the second part, E. Lund, is to give his whole time and energy to the successfully carrying on and completing of the afore[699]said contract in every particular. The parties of the first part, J. W. Taylor and W. S. Somervell, shall collect all moneys due and owing, or to become due and owing, on account of such contract, pay all bills as presented, and keep or have kept a faithful book of records showing receipts and disbursements, where any and all parties to this agreement shall have free access to review the same at all reasonable times, and make such notes as he may desire therefrom; and, after all just and equitable bills are fully paid and satisfied, the remainder of any moneys remaining as a profit on such contract is to be and shall be divided between the parties hereto equally, share and share alike.