Collins v. Meis

HAINES, J., pro tem. During the times with which we are in this action concerned the plaintiff and respondent Collins and the defendant and appellant Meis were partners engaged in the bakery business. Meis worked as a baker and Collins handled the banking and largely attended to the outside work. It is claimed that there had formerly been a third partner, who had died and that in his place one Salman had become a member of the firm as a third partner. The firm account was kept in bank under the name ‘■‘Plome Bakery, E. Collins,” with the knowledge and acquiescence of Meis, if not with his actual consent. Collins mingled his own moneys with those of the partnership in the same account. Meis desired to buy an automobile at a cost of $450' and discussed the matter with Collins. Collins, on March 4, 1931, borrowed the :$450 of the bank, gave his personal note for the loan, deposited the proceeds in the partnership account, and on the same date checked out this identical amount to Meis, who executed to Collins individually his note for it. Three days later Collins paid off his $450 note to the bank by drawing a check on the partnership account for the $450 and 30 cents interest and subsequently, and a few days before the trial, charged himself on the partnership books with $450. At none of these times was thei*e less than $1400 in the account at the bank, though how much of it may have belonged to the partnership cannot, until an accounting is had, be determined. Collins said he believed that there .was three or four hundred dollars of it belonging personally to him at the time he repaid the $450 loan at the bank. Meis’ note to Collins not having been paid, the present action was brought to enforce it by [235]complaint in tbe usual form. The answer admits the execution of the note, but asserts that Meis in fact borrowed the money represented by it from the partnership; that it is in fact owed not to Collins but to the partnership; that Collins, Meis and Salman are equally interested in the partnership and therefore have equal interests in the note, and as such partners are owners thereof; that there has been no partnership accounting and that therefore Collins has not the legal capacity to maintain the action. Meis also fíled a cross-complaint setting up the same contentions, seeking to have Salman brought in and made a party to the action and asking a partnership accounting. The evidence shows that there is a separate action pending for such an accounting. The cross-complaint was stricken out by the court on Collins’ motion. The trial was had on the complaint and answer, resulting in findings that Meis’ note to Collins was not held in trust by the latter for the partnership. Collins was thereupon awarded judgment against Meis in accordance with his prayer and Meis appealed.