Linden v. Rubens

MOORE, P. J. Plaintiff instituted this action for the dissolution of a partnership and for an accounting against Mary Rubens and John Doe. A general denial was filed by Mrs. Rubens in which she was joined by her husband, Frank Rubens, who answered instead of our fictitious friend. Frank filed his cross-complaint against Dr. Joseph P. Linden, father of plaintiff, hereinafter referred to as the doctor, and alleged that the latter and he had entered into a partnership on January 19, 1943, for the buying, selling and installing of physiotherapy machines; that “said partnership was a part of the alleged partnership described in plaintiff’s complaint”; that the doctor has “possession of the books and assets of the partnership and has prevented cross-complainant from having access to the same.” He demanded an accounting. Following a trial an interlocutory judgment was awarded plaintiff and relief on the cross-complaint was denied. Findings having been waived, judgment was entered from which comes this appeal.

The primary question for decision is whether the evidence is sufficient to support the judgment. To sustain the interlocutory decree it is necessary that from all the evidence favorable to plaintiff and cross-defendant the implied findings be so evidentially supported as to establish (1) that Mrs. Rubens entered into a partnership with plaintiff; (2) that Frank Rubens was vitally interested as a partner with his wife in the ownership of one-half interest in the business established; and (3) that the doctor was not a partner but merely gave aid and assistance to his son in the conduct and maintenance of the partnership business. A summary of the evidence adopted by the court below will disclose the hopelessness of the appeal.

In December, 1942, plaintiff, herein referred to as Junior, called on defendant Frank Rubens concerning certain electric therapy equipment which the latter had advertised for sale. After hearing a description of the “multiple-unit machine” plaintiff departed. He next met Frank at the office of the doctor about January 18, 1943. Frank then explained that he had been engaged in a business known as Therapy Products Co.; that he had gone into bankruptcy; that one Arons had purchased the therapy machines for Mrs. Rubens; that when the balance of $7,200 should be paid to Arons “all of the equipment, supplies and apparatus would revert to [690]Mrs. Rubens who was buying the things” because Frank was still “in litigation on the bankruptcy end of it and he really could not purchase any of it himself”; that his time limit for paying the balance to Arons was approaching and if Arons should not be paid he would keep the equipment; that for these reasons he desired to go into business with someone who could either pay the balance or sell the machines, the value of which he said was about $50,000.