Cirlincione v. Cirlincione

McCOMB, J. From a judgment in favor of plaintiff in an action to wind up a partnership after dissolution thereof by the death of one of the partners, and to recover the value of the deceased partner’s interest as of the date of his death, defendant appeals.

[37]Facts: The record being viewed in the light most favorable to plaintiff (respondent) the essential facts are:

In June, 1948, defendant bought a one-half interest in a delicatessen and liquor business from his brother, Benjamin Cirlincione, and his brother’s wife, plaintiff, for the agreed purchase price of $8,000, paying $3,500 in cash and giving to plaintiff and her husband a promissory note dated August 11, 1948, due on or before four years after date in the sum of $4,500, payable to them as joint tenants with interest at 6 per cent per annum from maturity. The note promised to pay 10 per cent of the unpaid amount thereof for attorney’s fees should it be placed in the hands of an attorney for collection.

Under a verbal agreement between the partners it was provided among other things that in ease of dissolution of the partnership for any cause the promissory note would immediately be due and payable out of defendant’s share of the proceeds due him upon dissolution of the partnership.

Plaintiff’s husband and defendant operated the business as equal partners until the death of Benjamin Cirlincione on April 29, 1949. Thereafter defendant operated the partnership business as a surviving partner until September, 1949, when the business was sold. The proceeds thereof, $18,544.23, were deposited with the Fishermen and Merchants National Bank, San Pedro, to be held pursuant to instructions of plaintiff and defendant or á judgment of the superior court.

Under the last will and testament of decedent, plaintiff received the entire interest in the partnership and the ownership of the promissory note mentioned above as the surviving joint tenant thereof.

The trial court found (1) that the value of the deceased partner’s interest as of April 29, 1949, the date of his death, was $9,484.23; (2) that defendant had rendered services in connection with the winding up of the partnership in the reasonable value of $100 in addition to the amount of $75 a week which he had drawn from the partnership from the date of his partner’s death until the sale of the partnership assets in September of 1949; (3) that defendant’s attorney had rendered professional services in the value of $200 in connection with the winding up of the partnership, one half of which was chargeable to plaintiff and one half to defendant; and (4) that defendant had $68.03 of the partnership funds in his possession.