GNS Printers v. Cooper

FOURT, J. GNS Printers (hereinafter sometimes called GNS), a partnership doing business in California, appeals from a judgment by the court, sitting without a jury, that defendant Ben Cooper is not personally liable to GNS on a common count for payment for printing services.

GNS contends that the findings of fact and conclusions of law incorporate determinations of issues not litigated during trial and that such determinations are adverse to and jeopardize appellant’s right to bring a second action for recovery of the debt from Cooper on the basis of section 6601 of the Corporations Code.

The bill of particulars prepared by GNS disclosed that appellant relied upon an open book account for the sum of $9,873.75 for printing services rendered to two New York corporations of which Cooper was an officer, director and shareholder. It is not disputed that the evidence failed to establish an open book account between GNS and Cooper, individually, and on respondent’s motion the court rendered judgment in Cooper’s favor at the close of appellant’s case. (Code Civ. Proc., § 631.8.)

It was established by the evidence that Ned North Enterprises, Inc. (hereinafter sometimes called Enterprises) formerly printed weekly TV logs and, under the fictitious name TV Fanfare Publications, sold and distributed these publications to purchasers on 52 week contracts. Sometime prior to August 1963, Cooper, a former employee of Enterprises, purchased and continued to operate as a sole proprietorship, the business of TV Fanfare Publications. Later he formed with Goldstein and Shanz two New York corporations called TV Fanfare Publications of New York and TV Fanfare Publications of Buffalo, respectively. Cooper advanced funds to these corporations; Shanz handled sales at a New York office; and Goldstein, then business manager of Enterprises, obtained financing of the contracts by incorporating with two other men a factoring company in which Goldstein and Cooper each held a 14 percent stock interest. The shareholders of the factoring company, Universal Advertising Finance Co., individually guaranteed in proportion to their respective stock interests the loans to each of the New York corporations.

In August 1963 Goldstein and A1 Shane, now deceased, formed a limited partnership with Ned North as limited partner and purchased the business and assets of Enterprises. They continued the business under the partnership name of GNS Printers. GNS Printers continued to print weekly TV [408]