Linden v. Moore

FOX, J. pro tem. Plaintiff brought this action to dissolve an alleged partnership with the defendant and for an accounting. From a judgment for $2,194.72 in favor of plaintiff, the defendant appeals.

[502]Plaintiff is a chiropractor licensed to practice in California. The defendant, a layman, is alleged to own the patent rights upon a certain mechanical device, known by the trade name of “Adomolator,” used in the treatment of rupture. Plaintiff alleges that on or about May 1, 1942, he and defendant entered into an oral agreement for the purpose of selling and using the Adomolator in the treatment of rupture without the use of drugs or surgery. It was agreed according to the complaint that defendant should contribute the use of the said Adomolator and “That plaintiff was to contribute his knowledge and skill as a chiropractor in the treatment of patients suffering from rupture by using said mechanical device and method of treatment.” Plaintiff further alleged that each of the parties was to receive one-half of the net profits after the payment of current expenses. The court found these allegations were true since it found that all of the allegations of the amended complaint were true.

Defendant takes the position that the quoted allegation which the court found to be true means, in effect, that plaintiff agreed to and did contribute his professional services as a chiropractor to the partnership business. Prom this premise he argues that the arrangement involved the “splitting of fees” between a chiropractor and a layman, and that such a contract is void as against public policy. We do not, however, agree with defendant’s premise, or the applicability of his legal proposition when the record is considered in its entirety.

The agreement as to what plaintiff would contribute to the partnership, as revealed by the quoted allegation, is somewhat ambiguous. The agreement must therefore be interpreted in light of the purpose for which the partnership was formed. In this connection it is alleged that the parties entered into the agreement “for the purposes of selling and using a certain mechanical device [the Adomolator] in the treatment of rupture.” (Italics added.) It must also be presumed that the parties intended to enter into a legal, and not an illegal, transaction. Plaintiff did not undertake to give chiropractic treatments to the customers of the partnership. Bather, he was to use his expert knowledge and skill in treating rupture “by using said mechanical device and method of treatment,” and in making sales of said Adomolator. The fact that plaintiff had training and experi