Tompkins v. Taylor

HAWKINS, J. pro tem. This is an appeal from a judgment entered against appellants upon the amended cross-complaint of respondents, which judgment provides for the expulsion of appellants from membership in an organization known as the Angus Club, and further provides as follows:

“That defendants are entitled to continue the business of the said co-partnership provided they secure the payment by bond approved by the court, or pay to plaintiffs who have caused the dissolution of said alleged partnership wrongfully, the value of their interest in said alleged partnership less any damages recoverable by defendants under clause 2a II of section 2432 of the Civil Code of the state of California, and indemnify plaintiffs against all present and future partnership liabilities.”

[373]There are other provisions in said judgment providing for the appointment of a referee to audit the accounts of the said Angus Club “for the purpose of ascertaining the interest of each of the plaintiffs in said Angus Club, and to do any and all things necessary to terminate the interest of the plaintiffs in said Angus Club, in accordance with the above judgment.”

The essential facts are as follows:

On or about April 15, 1935, plaintiffs and defendants entered into an oral agreement to form an organization for the purpose of purchasing, acquiring and developing real property in the city of Berkeley, county of Alameda, State of California. Thereafter a set of by-laws was adopted, officers were elected and regular meetings held. Later dissension arose among the members and appellants brought this action for a dissolution of the organization upon the theory that it was a partnership at will.

Appellants have adhered consistently to this theory, both in their pleadings and throughout the trial. Respondents, by their pleadings, alleged that the organization was not a partnership but a voluntary association, yet the judgment rendered gave relief provided for by section 2432 of the Civil Code, which section applies to partnerships.

There is no evidence in the record as to the terms of the original oral organizing agreement and the question as to whether the organization was a partnership or a voluntary association has to be determined from admissions in the pleadings, evidence of the contents of the by-laws and minutes of the organization and the conduct of the members. This question should be decided positively in the first instance by the trial court, and this has not been done.