Wilson v. J. Bramblett

GRIFFIN, J. Plaintiff and appellant W. Francis Wilson, an attorney at law in Phoenix, Arizona, brought this action against certain named defendants, including respondents J. Newton Bramblett, Frank J. Stefanieh, Stuart M. White, James G. Huebner, Tim Mazzoni, and F. M. Hammaek, to recover on a promissory note for $9,845.54, alleged to have been executed on August 30, 1951, by defendant C. M. S. Kipling (not served) and respondent Stefanieh. It was subsequently signed by C. M. S. Kipling, as general partner, under the typewritten title “The Kipling Syndicate.” The note was for claimed attorneys’ fees rendered to the Kipling Syndicate, a California copartnership. The court found generally in favor of defendants; that no such note was ever executed or delivered by said individuals or the partnership; that Kipling’s power, as a general partner, was limited, and did not include the power to execute a note on behalf of the syndicate; that the syndicate was a limited partnership, and [370]plaintiff well knew of such limitation and did not act in good faith; that the delivery and liability of the parties under said note was conditioned on the fact that Bramblett, a general partner, would also sign it; that in fact he did not sign it and there was no actual delivery to plaintiff of said note; that it was materially altered by plaintiff and accordingly the note was of no force and effect. Plaintiff was denied recovery. Judgment went for defendants and respondents.

It is appellant’s contention that the evidence does not support the findings of (1) a limited partnership; (2) that Kipling and Stefanich did not have authority to execute the note for the partnership; (3) that it was conditionally delivered; or (4) that appellant materially altered it.

The facts indicate that on January 7, 1950, at Fresno, defendants signed articles of limited partnership to acquire and develop and sell certain oil properties in Arizona. It was capitalized under a unit system, showing the names of the limited, as well as the general partners, and the number of units owned by each. The general partners were Bramblett and Stefanich,- of California, and Kipling and Harris, of Phoenix, Arizona. Under the partnership agreement the remaining defendants were limited partners and the disbursement of any money was to be made by Bramblett and Stefanich, who had the sole authority to sign all checks. Only the general partners had authority to carry on the business of the copartnership. The limited partnership agreement, although signed by all parties concerned, was neither sworn to nor recorded, as required by section 15502 of the Corporations Code. The evidence shows the reason it was not recorded was due to the likelihood that other people might be haunting them as prospective investors. Apparently appellant knew of those claimed defects and the court so found. It also found, in effect, that as between the partnership and appellant, there had been a sufficient compliance with the law under subdivision (2) of that section. It does appear that for convenience sake, in purchasing and negotiating for other land or leases, on May 10, 1950, all limited and general partners gave a limited written power of attorney to Kipling to “execute documents of conveyance . . . leases . . . and such other documents as are necessary to acquire or dispose of real property” belonging to the syndicate. It did not include the execution of promissory notes on behalf of the syndicate. The evidence also shows that the syndicate also formed a corporation and operated through such corporation.