Goldring v. Chudacoff

McCOMB, J., pro tem. This is an appeal by plaintiff from a judgment in favor of defendant after a trial before the court without a jury.

The conceded facts are:

A judgment in the sum of $15,000 predicated upon an automobile accident was obtained against defendant and the National Packing Company, of which plaintiff and defendant were copartners. An insurance company paid $10,000 in partial satisfaction of the judgment. Thereafter plaintiff paid $3,353 to the judgment creditor. This sum was less than half of the balance due upon the judgment, which had been increased by accrued interest and costs. Defendant paid $200 on account of the judgment.

This is the sole question necessary for us to determine.

In an action for contribution between copartners is the basis of computation the amount of the partnership obligation or the sums actually paid by the respective partners?

The partner who pays more than his share of partnership debts is entitled to contribution from his copartner. (Sec. 2412, subsec. (a), Civ. Code.)

[742]The correct basis for determining the amount due one partner from another is the sums actually paid by each ■partner toward liquidating the partnership obligation and not the total amount of the partnership debt. (13 Cor. Jur. 825; Thompson v. Fitzgerald & Ray, (Tex. Civ. App.) 105 S. W. 334, 336.)

Therefore, in the instant case, since plaintiff paid $3,353 to the judgment creditor and defendant only $200, plaintiff was entitled to contribution from defendant in accordance with the foregoing rule.

The judgment is reversed with directions to the trial court to permit the respective parties to file such amended pleadings as may appear to be in the interests of justice.

Grail, P. J., and Wood, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on August 14, 1936, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 28, 1936.