Sager v. Estergren

SHINN, J., pro tem. In this ease the court took an account of the affairs of a partnership consisting of plaintiff and defendant and having for its sole .purpose the raising and marketing of a crop of sugar beets. The judgment in effect was one for dissolution of the partnership, and the accounting, the results of which were carried into the judgment, settled the affairs of the partnership in full and awarded plaintiff certain sums of money. Defendant appeals on the judgment roll.

It is urged by defendant that the complaint failed to state a cause of action for dissolution of the partnership and that his general demurrer thereto should have been sustained. This contention cannot be upheld. In the articles of partnership, the execution of which was admitted by the pleadings, were provisions that the parties should jointly supervise the growing and raising of the crop and share equally all expenses and costs of raising, growing and harvesting the crop, and they were to make, execute and deliver such notes, mortgages and other instruments as might be necessary to secure advances from the Union Sugar Company to assist in financing the crop.

It was alleged in the complaint that it became necessary to employ laborers and to purchase materials and supplies in connection with the raising of the crop and to obtain additional finances for that purpose, and it was alleged that defendant failed and refused to advance his share of the expenses or any part thereof and failed and refused to execute papers necessary to obtain financing from Union Sugar Company, by reason of which plaintiff was required to and did advance from his own funds the sum of $815.07; and it was alleged that defendant failed and refused to assist in the supervision and raising of the crop and that plaintiff had been required to devote all of his working time thereto. It was not alleged that the partnership had been terminated by the parties or either of them, nor that the business had been finished. The complaint did not pray for a dissolution of the partnership, specifically, but did contain a prayer for general relief. [384]Section 2426 of the Civil Code provides: “On application by or for a partner the court shall decree a dissolution whenever : . . . (d) A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him, ...(f) Other circumstances render a dissolution equitable.” As against a general demurrer and in view of the limited purpose of the partnership, and the brief duration thereof, we hold that the allegations were sufficient to invoke the equitable jurisdiction of the court for the purposes of dissolution of the partnership. Even though it was not alleged that defendant’s breaches of the contract were wilful or persistent, it cannot be denied that, prima facie at least, it would be impracticable to carry on the business of a partnership requiring equal contributions of labor and money with a partner who failed and refused to contribute either, and who refused also to cooperate with the willing partner in procuring financing for the business as he was bound by the articles of partnership to do. Dissolution of a partnership may be decreed under a prayer for general relief if dissolution is one of the purposes of the action and sufficient facts are stated in the complaint to warrant that relief. Of course, where a decree of dissolution is not sought the court may grant no relief of a sort which depends upon a dissolution by the parties or by decree. The complaint should have been amplified so as to leave no doubt as to the nature of the relief which was applied for, but the overruling of defendant’s demurrer was not such an error as requires a reversal of the judgment.