Wirta v. Vergona

PEEK, J. By his complaint, plaintiff sought to recover the balance alleged to be due him on the sale of logs to defendants Willat, Vergoña, and Lombardi, as partners operating a sawmill in Humboldt County. Defendants Vergoña and Lombardi pleaded a discharge in a voluntary bankruptcy proceeding and by stipulation of counsel, the case appears to have been abated as to them. Defendant Willat, by his answer, denied generally the allegations of plaintiff’s complaint, and specifically denied there had been any sale to him, that he [366]was a partner, or that he had held himself out as such. The cause proceeded to trial on the issues as framed and at the conclusion, the court found in favor of plaintiff and entered judgment accordingly.

Essentially, the sole contention made by Willat on appeal is that the evidence is insufficient to support the findings and in particular the finding “That it is true that defendant Willat, represented himself and allowed himself to be represented to plaintiff as a partner of defendants Vergoña and Lombardi, and that on the faith of such representations plaintiff extended the aforementioned credit to defendants and to the apparent partnership composed of defendants, Vergoña, Lombardi and Willat. ’ ’

Viewing the record as we must in light of the rule so often cited (Crawford v. Southern Pacific Co., 3 Cal.2d 427 [45 P.2d 183]; see also Overton v. Vita-Food Corp., 94 Cal.App.2d 367 [210 P.2d 757]), it discloses that early in 1954 Vergoña entered into discussions with Wirta concerning the latter’s furnishing logs to the Sproul Creek Mill, which Vergoña had taken over. Vergoña told Wirta that he was associated with appellant and that appellant was financially responsible. Wirta later was introduced to appellant by Vergoña as his partner. At this time Wirta told Vergoña he could supply enough logs to keep the mill going. Later the same day Wirta met appellant at a hotel, where a discussion was had concerning payment. Appellant told Wirta that he would have no problem as far as money was concerned. He also told Wirta that, “we may be a little slow, but we’ll pay you.” Later, Wirta received a letter with appellant’s signature on it, which read in part, “Friend Into, if we should be a little late with payments it won’t be because your logs are not good or that we cannot find the market. It will be because we are having trouble setting up here, and because it takes a little time to collect, ...” Later, Wirta received two checks from appellant in payment for logs delivered by Wirta to Sproul Creek Mill.