Bird v. Bird

WHITE, J. This is an appeal from a judgment for defendant after trial before the court without a jury. Plaintiff claimed a one-twentieth interest as a copartner with defendant, his father, in a clothing business, and sought an accounting, the imposition of a trust upon assets conveyed by the father to defendant corporation, declaratory relief and a money judgment. Defendant father and defendant corporation by their answer put in issue all the allegations of the complaint.

The trial court found all the allegations of plaintiff’s complaint to be untrue except as hereinafter set forth. The court further found:

“2. That at the commencement of the trial of this cause, all parties stipulated that the issues formed by the pleadings might be disregarded; that the plaintiff abandoned all claims except as to the issues following: (1) was the plaintiff an owner of a one-twentieth interest in the partnership of Ralph Bird and Sons, and (2) was the sum of $4480.00 previously deposited with defendant, Ralph S. Bird, Sr., by plaintiff, repaid by said defendant to plaintiff.

“3. The plaintiff and the defendant, Ralph S. Bird, Sr., entered into a written agreement of partnership on or about the 26th day of August, 1940; that said agreement was modified in writing on or about the 1st day of October, 1940; that under and by virtue of said modified agreement, plaintiff agreed to purchase a one-twentieth interest in said partnership for the sum of $1,000.00, and said obligation so to pay was evidenced by a written promissory note dated the 5th day of October, 1940, signed by plaintiff as maker thereof in the sum of $1,000 and payable to Ralph S. Bird, Sr.; that thereafter and prior to March of 1942, plaintiff paid the sum of $138.00 upon the principal of said note, and plaintiff was credited with an additional payment of $156.00 on the principal of said note.

“4. That prior to January 2, 1942, or thereabouts, defendant, Ralph S. Bird, Sr., paid over and returned to plaintiff the sum of $138.00 theretofore paid on said note; that on January 2, 1942, or thereabouts plaintiff made and executed a written [379]document whereby and by the terms of which the partnership theretofore existing between said parties was terminated and ended, and whereby and by the further terms of which plaintiff assigned his interest in the partnership to defendant, Ralph S. Bird, Sr.,; . . .

‘ ‘ 5. That the partnership theretofore existing between plaintiff and defendant, Ralph S. Bird, Sr., was, by mutual consent of said partners, terminated and dissolved on or about J anuary 2, 1942.”