Hensley v. Popkin

NOURSE, P. J. Plaintiff sued in the superior court in Monterey County to quiet title to real property situated in that county. At the same time an action was pending in the superior court in the city and county of San Francisco for dissolution of a partnership between Hensley, Popkin and Graham. The defendant Kuznetzoff, claiming an interest through an assignment from Popkin, petitioned for leave to intervene in the suit pending in the city and county of San Francisco, but his petition was denied. He was joined as a defendant in the action brought in Monterey County as one claiming some adverse interest in the property. The trial court found that Hensley and Graham were each the owners of a one-half interest in the real property subject to certain prior liens and adverse claims which are not contested on the appeal. The plaintiff Hensley and the defendant Kuznetzoff appeal separately from the judgment and from the order denying their motions to tax costs. No presentation is made by either appellant in support of the second appeals, and for that reason they will both be deemed to be abandoned.

The facts are complicated because of the numerous cross-filings of the respective parties, but a detailed statement is not necessary because neither of the appellants makes any attack upon the findings of the trial court. On August 20, 1940, Hensley and Popkin entered into a partnership agreement reciting that Popkin had purchased the real property and pumping plant and machinery from Tidewater Associated Oil Company for $6,500; that Popkin and Hensley should share the profits on a fifty-fifty basis; all money coming in from the sale of the machinery located on the property should go to Hensley until he had received $2,500 which he agreed to advance for the purchase of the real property and the machinery. Popkin agreed to transfer the title to the property to Hensley until the latter had been reimbursed in full for the money he had put into the transaction.

On August 22,1940, Popkin entered into an agreement with Kuznetzoff by which he assigned all his right and interest “in the following deals: . . . said deals representing eight (8) boilers.” On the 22d of August Popkin and Kuznetzoff entered into an agreement of partnership “to carry out the [854]boiler deals” mentioned in the foregoing assignment and to divide the profits therefrom equally between them.

On August 15, 1940, Graham filed a suit in the city and county of San Francisco against Popkin for breach of contract. In February, 1941, Popkin consented to a judgment being entered against him and execution and a charging order on Popkin’s interests in the real property and partnership were issued. On May 29, 1942, a stipulation was entered into by Graham, Popkin and Hensley that an accounting should be had of the Hensley-Popkin partnership. On October 15, 1942, Popkin, Graham and Hensley entered into another stipulation dispensing with further partnership accounting and stipulating that through the partnership agreement of August 20, 1940, between Popkin and Hensley each party receive an equal one-half interest in the partnership property; that Hensley was entitled to be paid $2,475.02 and that Popkin was entitled to be paid $300.71 before the division of the partnership property would be made, and that the interest of Pop-kin was subject to a first lien through a charging order filed by Graham. It was also agreed that Popkin should promptly obtain from Kuznetzoff a cancellation of his assignment or that he would hold the other parties free from any claim of Kuznetzoff in the partnership. This stipulation was filed in proceeding No. 296850 pending in the superior court in San Francisco between Graham, Popkin and Hensley to determine the respective interests of the several parties in the property involved in the pending action.