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that reason become null and void at the option of either party. The supreme court held, as it could not justly otherwise be held under the facts as stated, that the contract did not make the plaintiff a partner in the business, and said: “He was to have no title to any of the property and was not liable for any of the debts. His entire interest in the business consisted in his right to receive one-half of the profits as his compensation."
In the case at bar, as will be noted, there is no language in the agreement as pleaded, as we construe and understand it, which provides, as do the agreements involved in two of the cases above referred to, any condition or contingency upon the performance or happening of which only the interest of the plaintiff as a partner in the business and property mentioned in the complaint was to vest. The allegation is not, as before declared, that the plaintiff's title was not to vest until some future time or only in the event that the purchase price was in fact fully paid and the defendant, Shoo, repaid by the plaintiff one-half of the twenty thousand dollars advanced by said Shoo as the first payment. The only reasonable interpretation of the language of the complaint is, as we have shown, that the parties agreed to jointly purchase the property for partnership purposes, that they did so and jointly entered into and took possession of said property, that they were to jointly carry on the business, to carry on which they had associated themselves together, and to jointly enjoy in equal shares the profits thereof.
But it is insisted that the complaint fails to disclose a partnership because it is not therein made to appear that the plaintiff agreed to be liable for the debts contracted in carrying on the business. This contention is not sound. Manifestly, as counsel for the plaintiff suggests, liability for debts can mean nothing else but liability for losses, and where a contract of copartnership contains a stipulation or agreement for the division of profits and none as to the division of losses, the law will imply a joint responsibility for the latter by the partners. Section 2404 of the Civil Code provides that “an agreement to divide the profits of a business implies an agreement for a corresponding division of its losses, unless it is otherwise expressly stipulated."
In Couard v. Clanton, 122 Cal. 451, (55 Pac. 147), it is said that it is “not true that our code makes profit-sharing a test of partnership," and in the same case it is said: “It would not lack much of a good definition of a partnership if the clause (Civ. Code, sec. 2395) in regard to the division of profits were omitted. It would read that 'a partnership is the association of two or more persons for the purpose of carrying on business together.'” Thus it will be observed that the effect of an agreement whereby two or more parties associate themselves together for the purpose of carrying on business, without any reference or covenant therein as to the division of profits, would be to establish them as partners, unless there was some other express stipulation therein that such was not intended to be their legal relation. But where, as here, the agreement goes further and stipulates that there shall be a division of profits without a stipulation of any character as to the division of losses, the latter liability is implied from the provision for the division of profits. (See Quinn v. Quinn, 81 Cal. 15, [22 Pac. 264); Whitly v. Bradley, 13 Cal. App. 721, (110 Pac. 596); Brooke v. Tucker, 149 Ala. 96, [43 South. 141).)
Nor is the statement in the complaint that the parties "entered into a parol contract of copartnership" to be regarded, as is the contention, as a mere legal conclusion. Of course, it is true, as may likewise be said of many averments of ultimate facts, that the mere statement alone that two or more persons have formed themselves into a copartnership may be said to involve the statement of a conclusion of law. An averment in an action to recover real or personal property that the plaintiff is the owner thereof is no less the statement of a legal conclusion than the one criticised here, yet such averment of ownership has always been held to involve the statement of an issuable fact. However, it will be observed that the averment as to the contract of partnership in this case is followed by the allegation, “whereby they agreed to associate themselves together for the purpose of conducting and maintaining" the business therein named, and this language itself is a sufficient statement of a partnership under our code definition thereof, as construed in Coward v. Clanton, 122 Cal. 451, (55 Pac. 147.]
There is nothing said in the case of Hammon v. Borgwardt, 126 Cal. 613, [59 Pac. 121], in conflict with the construction of the complaint in the respect here considered. In that case, a witness at the trial upon an issue of partnership made the statement, in his testimony, that a certain party was his “partner.” This statement, the supreme court correctly held, constituted “at best, a mere legal conclusion.” Of course, there can be no proposition less subject to dispute than that it is not for the witnesses but for the court or jury to say from the facts whether a partnership between two or more persons exists, and the former are not permitted to give their opinions upon that proposition but must simply state facts from which the final arbiter thereof must determine the ultimate truth of such controversy. In pleading, where ultimate and not probative facts are dealt with, much more liberality must of necessity be indulged as to the statement of the facts of the transaction on which the action is founded than can be accorded to the witnesses who must give evidentiary facts only. As before suggested, in many cases it would be impossible to state a cause of action in a pleading without embracing a'statement which, in a strict view, would involve a legal conclusion. For instance, in the case at bar, strictly speaking, the statement that the parties “associated themselves together" for the purpose of jointly carrying on a business might be regarded as the statement of a conclusion from certain acts and facts that had constituted them partners. But it would be difficult, indeed, to perceive how any other statement of the fact of partnership could be made in the complaint without averring probative facts, contrary to the recognized rules of good pleading. The witnesses are required to state to the court or jury the very facts from which the facts pleaded are drawn, and, obviously, as stated, it is beyond their province as such merely to state their conclusion from the facts, which would, of course, throw no more light on the transaction on which the action is founded than do the pleadings themselves.
It is further objected that the complaint is not good for want of facts because it does not appear th refrom that the plaintiff was to have title to any of the property with which the business was to be conducted. There is no merit in this objection. The complaint, as has been shown, alleges that
the improvements put upon the real property and the stock in trade and all fixtures and paraphernalia used in connection with the business they embarked in as partners were paid out of the profits of said business; that the real property they purchased, in pursuance of an option they previously secured, was to be paid out of the profits of said business and the rents derived from certain portions of said real property; that out of such profits and rents payments had been made on the principal of the purchase price and the interest accruing thereon. We are unable to perceive how the plaintiff's title to the property referred to could be made plainer. But while the question whether the title to the real property was to vest in both the plaintiff and the defendant and not in the latter alone is important here because of the prayer for an accounting of the partnership assets, the fact of the joint ownership of the property employed in carrying on the business of a copartnership need not necessarily be shown in order to establish the fact that a partnership exists. “To constitute a partnership, it is not necessary that there should be property forming its capital, jointly owned by the partners. The property employed in the partnership business may be separate property of the partners; but, if they share in the profits and losses arising from its use, a partnership exists." (Brooke v. Tucker, 149 Ala. 96, (43 South. 141); Whitley v. Bradley, 13 Cal. App. 721, [110 Pac. 596].)
2. We see no force in the point that the complaint discloses that the contract pleaded, as to the time within which it is to be performed, is void under the statute of frauds. (Civ. Code, sec. 1624, subd. 1.)
This contention is inspired by the following averment in the complaint as it was originally filed: “That said copartnership shall continue for a period of not less than three (3) years," etc. But this allegation and certain other portions of the complaint were stricken out by the court on motion, and, therefore, so far as the complaint is concerned, the point that the contract is void under our statute of frauds is not well taken. But it has been doubted whether the statute has any application whatever to oral partnership agreements. “Certainly not,” says the court of appeals of New York in Sanger v. French, 157 N. Y. 213, (51 N. E. 979), “when the agreement has been wholly or partially executed. But, if it has,
the only effect it could have upon the agreement found by the referee was to convert it into a partnership at will. Such a partnership exists until something is done to dissolve it,” citing Lindley on Partnership, p. 571. (See, also, Shropshire V. Adams, 40 Tex. Civ. App. 339, (89 S. W. 448); Weatherford etc. Co. v. Wood, 88 Tex. 191, [30 S. W. 859).)
The agreement here was partially executed—that is, the parties after the formation of the partnership, entered into the active prosecution of the partnership business immediately upon securing the property necessary to do so and continued the partnership until the plaintiff was forcibly excluded from any participation therein by the defendant, John J. Shoo, and even if the allegation as to the time during which the alleged partnership was to exist had not been stricken out, the objection here made to the agreement as thus pleaded would still have been unavailable, since the partnership would necessarily exist until dissolved. This brings us to the consideration of a cognate question involved in the third ground upon which it is argued that the complaint, in so far as it attempts to disclose that the real property therein described was to be and become a part of the partnership assets, is deficient in the statement of facts.
3. The contention upon said proposition is that that part of the agreement which relates to said real property is void under our statute of frauds—that is, as before stated, under the terms of section 1624 of the Civil Code.
But this precise point has been decided by the supreme court adversely to the contention of appellants. In Bates v. Babcock, 95 Cal. 479, 484, (29 Am. St. Rep. 133, 16 L. R. A. 745, 30 Pac. 905), it is said that, while the question whether such a partnership (that is, to deal in real property) can be formed, except by an agreement in writing, has been the subject of conflicting decisions, yet “the great weight of authority is in support of the rule that such a partnership may be formed in the same mode as any other, and that its existence may be established by the same character of evidence." In support of this view, the court cited and quoted from a number of English and American cases, among the latter, that of Coward v. Clanton, 79 Cal. 23, [21 Pac. 359), where it was held "that an agreement for the purchase of a tract of land, and its subdivision and sale in parcels, and for a di