Gotta v. Colombero

MUSSELL, J. This is an action for dissolution of a partnership and for an accounting. Plaintiff alleged an oral agreement of partnership entered into with defendant on or about August 30, 1948; that the partnership engaged in farming and agricultural operations and acquired real and personal property; that a substantial portion of the firm assets are in the possession of defendant and that he refuses to account therefor; that no accounting has been had; that plaintiff desires that the partnership be dissolved and that [677]an accounting be had. Defendant in his answer and as a separate defense to the action alleged that the partnership was dissolved by mutual consent in November, 1951; that an accounting was thereafter had between plaintiff and defendant whereby it was determined and agreed that defendant owed plaintiff the sum of $7,500; that defendant tendered said sum to plaintiff and the tender was rejected; that defendant has deposited said sum in court. An accord and an account stated were also pleaded by the defendant.

The trial court found, among other findings, “That said partnership was dissolved by mutual consent about November 1, 1951. That thereafter an accounting was had between plaintiff and defendant wherein it was determined and agreed that there was due, owing and unpaid by defendant to plaintiff the sum of $7,500.00. That immediately thereafter, defendant tendered said sum to plaintiff, but plaintiff rejected said tender and repudiated said accounting; that defendant does now tender said sum to plaintiff in accordance with said agreement, and coincident with Ms appearance in this action has deposited said sum in court in performance of said account"; that plaintiff and defendant entered into an accord respecting their partnership affairs, and by said accord orally agreed that in full satisfaction of all obligations between them respecting the partnership, defendant should pay plaintiff the sum of $7,500; that defendant tendered said sum to plaintiff and that he refused to accept it; that defendant has fully performed all conditions of said agreement of accord on his part and offers and tenders to plaintiff the sinn of $7,500 in accordance with said accord. Judgment was entered in accordance with these findings and plaintiff appeals.

The parties agree that the issues on this appeal are as to whether the court erred in finding (1) That the partnership had been dissolved before May, 1952; and (2) That thereafter an accounting was had which resulted in an agreement by which plaintiff agreed to accept $7,500 in full satisfaction of the partnership affairs.