Sievert v. Simonds

McCOMB, J. From a judgment in favor of defendants after trial before the court without a jury in an action for an accounting of an alleged partnership, plaintiffs appeal. There is also a purported appeal from the order denying plaintiff’s motion for a new trial.

[35]Facts

Plaintiffs filed an action against defendants seeking to have a certain business declared a partnership and for an accounting. In the complaint it was alleged that on or about January 1, 1929, plaintiffs and defendant Bay Simonds, in Los Angeles, orally entered into and formed a copartnership agreement for the purposes of carrying on a business under the firm name and style of Simonds Machinery Company, and thereafter entered upon and continued to conduct and transact such copartnership business in such city under the aforesaid firm name.

The trial court found as follows:

“That none of the allegations of paragraph VI of plaintiff’s complaint is or are true. The court finds that neither defendant Bay Simonds nor Grace Simonds at any time or at all entered into or formed a partnership agreement either orally or otherwise with said plaintiffs or said Ed Christensen, or all or any of them, for the purpose alleged by plaintiffs in said complaint, or for any purpose or at all, or under the firm name and style of Simonds Machinery Company, or any name or style whatsoever. The court finds that at all times mentioned in said complaint the business of Simonds Machinery Company was conducted by said Bay Simonds as sole owner thereof under the firm name and style of Simonds Machinery Company in said County of Los Angeles and elsewhere, and that plaintiffs and none of them have at any time had any interest in said business as partners or otherwise.”

Questions

First: Was there substantial evidence to sustain the findings of fact of the trial court set forth abovef

This question must be answered in the affirmative. Defendant Simonds testified relative to plaintiff Sievert’s association with him in substance as follows:

“I live in San Francisco and I am the owner of Simonds Machinery Company. I first started the Simonds Machinery Company in 1905 in San Francisco, buying and selling pumps, and at that time some other machinery. In 1927 Í first established an office in Los Angeles and have been conducting such business down here since that time under the name of the Simonds Machinery Company, buying and selling pumping machinery. I first met Bupert T. Sievert in November 1927 in Los Angeles and employed him as a salesman. He and I agreed together on his salary of $125 or $150 a month, I