Lissman v. McDonald

NOURSE, P. J. Plaintiff, as executrix and surviving widow of Camille Lissman, sued in declaratory relief to demand and determine her right, in the capacity of a limited partner, to the share of the annual profits of the partnership. Plaintiff had judgment as prayed and this appeal followed.

There is no dispute as to the facts, the question here being confined to an interpretation of the articles of partnership. Four individuals were named both as general and as limited partners. The investment of each, both as general and as limited partners, was listed in dollars and cents. The interest of each in both capacities was also listed in appro[229]priate percentages. Therein Camille Lissman was noted as holding 20 per cent as general partner and 5 per cent as limited partner.

The business consisted of the mining, processing, and marketing of sand, gravel and similar products under the name of Monterey Sand Company, located at Seaside. It was profitable from its inception. The net profit for the year 1950 was $90,493.67. Of this amount the court awarded plaintiff the sum of $12,491.33, representing her percentage as limited partner of the undrawn profits for that year.

The trial court in its judgment declared that the partnership agreement requires: “the distribution and payment to the estate of Camille Lissman, deceased, and its successor, in the role of a limited partner in said partnership business, of its full share of profits provided by the terms of said partnership agreement upon the determination of profits for each calendar year during the term of existence of said partnership, provided that after payment of such profits, the partnership assets are in excess of all liabilities of the partnership business, except liabilities to limited partners on account of their contributions and to general partners.” This was in accord with the court’s interpretation of the articles of partnership made in its findings of fact.

Appellants do not follow the usual practice of stating their grounds of appeal or of listing the errors upon which they rely. It seems to be their position that under the judgment the heirs of the limited partner are relieved of personal liability for the partnership debts and also that, if the widow is allowed to draw her profits annually, then they would be required to do the same. If this be so it is the fault of the articles of partnership and not of the judgment.

No applicable authorities are cited by either party and we have not found any. In support of the judgment the learned trial judge filed a written opinion clearly stating our views on the controversy. We herewith adopt that opinion as stating the reasons for our affirmance of the judgment.