YORK v. BECK ET AL (1941)

Sophie Miller died leaving an estate consisting of real and personal property. Thereafter the plaintiff, Gretchen Beck, was appointed administratrix of said estate. One of the assets which came into her possession was a promissory note in the sum of $10,000 payable to decedent, which had been executed by Jean Taggart, one of the defendants. As such administratrix, Gretchen Beck commenced action No. 285,050 to recover the amount due on said note. The defendant Jean Taggart appeared and answered. In said answer she inserted numerous denials and then she inserted affirmative allegations to the effect that by the terms of the contract between Sophie Miller and herself, the said note for $10,000 became discharged upon the death of said decedent.

Shortly before the above–mentioned action was commenced, Augustus York commenced an action, No. 283,762, against Gretchen Beck, as administratrix of the estate of Sophie Miller, deceased, and Jean Taggart. In his complaint he alleged that in 1914 he and Sophie Miller formed a copartnership which continued down to the date of her death on February 5, 1938; that Gretchen Beck was appointed administratrix of the estate of said decedent; that later she qualified and is now acting as administratrix; that at the time of the death of Sophie Miller said copartnership owned numerous items of real and personal property which he enumerated; that after her appointment as administratrix Gretchen Beck took possession of all of said properties, including the above–mentioned promissory note, and claims to hold said properties as administratrix; that the value of the said copartnership property is $25,000; that the plaintiff Augustus York is the surviving partner of said copartnership and is entitled to the possession of all of its property. The complaint was answered by both defendants.

After the two actions were at issue the trial court, acting on the stipulation of the parties, consolidated said actions for the purposes of trial. Later both actions were tried before the court sitting without a jury. After the trial the court made findings of fact in favor of Augustus York. From the judgment entered thereon the defendant Jean Taggart and the plaintiff Gretchen Beck, as administratrix of the estate of Sophie Miller, have appealed.

The findings of fact and conclusions of law were as follows:

“Findings of Fact

“I. That in or about the year 1914, plaintiff and Sophie Miller entered into and formed a copartnership for the purpose of acquiring real and personal property and dealing with the same, their joint earnings contributing thereto; each partner having an equal interest in and to said copartnership assets and profits; that said copartnership continued until the 5th day of February, 1938, when the said Sophie Miller died.

“II. That thereafter such proceedings were had and taken in the matter of the estate of Sophie Miller, deceased, in the Superior Court of the State of California, in and for the County of San Mateo, that the defendant, Gretchen Beck, was appointed the administratrix of said estate of said Sophie Miller, deceased, and thereafter duly qualified as said administratrix and ever since has been and is now the duly appointed, qualified and acting administratrix of the estate of Sophie Miller, deceased.

“III. That at the time of the death of said Sophie Miller, there was owned and possessed by said copartnership and of record in the name of said Sophie Miller, the following described property free and clear of all liens and incumbrances, towit: (Enumerating the items of real and personal property mentioned) that said Gretchen Beck, as administratrix of the estate of said Sophie Miller, deceased, as aforesaid, at the death of said Sophie Miller, obtained and possessed all of said copartnership property and ever since has been and now is in possession of the same.

“IV. That said Sophie Miller during her lifetime made a gift of the sum of Ten Thousand ($10,000.00) Dollars, belonging to said copartnership to the defendant, Jean Taggart, without the knowledge and consent of plaintiff, the said copartner; that in consideration thereof the said Jean Taggart executed and delivered to said Sophie Miller her promissory note in the sum of Ten Thousand ($10,000.00) Dollars, and interest at the rate of six per cent (6%) per annum payable monthly; that it was agreed by and between said Sophie Miller and the said defendant, Jean Taggart, on the execution of said promissory note, that said Jean Taggart was obligated to pay the interest on said note to said Sophie Miller up to the time of the death of said Sophie Miller, whereupon the liability of said defendant, Jean Taggart to pay said promissory note ceased as to the one–half interest of said Sophie Miller therein.

“V. That plaintiff as the surviving partner of said copartnership is entitled to recover of and from the said Gretchen Beck, the administratrix of the estate of said Sophie Miller, deceased, all of said copartnership property and after an adjustment and settlement of the affairs of said copartnership, to account to the administratrix of the estate of said Sophie Miller, deceased, for whatever interest is due her from said copartnership, and deducting from said interest the sum of Five Thousand ($5,000.00) Dollars, together with interest at the rate of six per cent (6%) per annum from February 5, 1938, the subject of a gift as aforesaid from Sophie Miller to Jean Taggart and if the copartnership interest of said Sophie Miller is less than Five Thousand ($5,000.00) Dollars, then and in that event plaintiff shall have judgment against said Jean Taggart for the deficiency.

“Conclusions of Law

“That plaintiff is the surviving partner of a copartnership of plaintiff and Sophie Miller, deceased, and as such surviving partner is entitled to a judgment against the defendant, Gretchen Beck, administratrix of the estate of Sophie Miller, deceased, for the recovery of the possession of the copartnership property described in Paragraph III of the Findings herein, together with all interest, profits, dividends and income derived by said administratrix from said copartnership property or the value of the personal property in case a delivery cannot be had.

“That after the adjustment and settlement of the copartnership affairs by plaintiff he shall account to the said administratrix of the estate of said Sophie Miller, deceased, her interest therein after deducting therefrom the sum of Five Thousand ($5,000.00) Dollars, together with interest at the rate of six per cent (6%) per annum from February 5, 1938, the subject of the gift from said Sophie Miller to said Jean Taggart, and if there is less than Five Thousand ($5,000.00) Dollars, belonging to said Sophie Miller as her said copartnership interest, then plaintiff shall have judgment against said Jean Taggart for the deficiency.”

Appeal of Gretchen Beck as Administratrix

In her briefs the administratrix does not set forth any statement of error on the part of the trial court. But we infer, and acting on that inference, in what follows, we will assume that she is complaining of some of the findings and in particular of the finding (1) that a partnership relation was created between the decedent and Augustus York and that (2) the said promissory note was executed in consideration of the loan of $10,000 of the partnership funds by the decedent to Jean Taggart. Such attacks are not supported by the record. Conceding that there was some conflict in the evidence, nevertheless there was clear, direct, and positive evidence of the creation, continuance, and nature of a partnership relation between the decedent and Augustus York. The findings thereon may not be disturbed by a court of review. Lyon v. MacQuarrie, Cal.App., 115 P.2d 594.

That the decedent made the loan of $10,000 to Jean Taggart, and the terms of the loan were shown by written instruments which directly support the findings. That the said funds belonged to the partnership necessarily follows as a conclusion from other facts. The partnership was formed in 1914. There was evidence that after that date the decedent had no individual funds and that she possessed only partnership moneys. The decedent could not by making the loan divest her copartner of his interest in the fund. Simmons v. Rowe, 4 Cal.App. 752, 759, 89 P. 621. And, in substance, such was the holding of the trial court.

Appeal of Jean Taggart

The defendant Jean Taggart contends the finding that the fund of $10,000 was the property of the alleged copartnership is not supported by the evidence. We have shown above it was supported. Continuing, this defendant asserts that the finding that the decedent “made a gift of the sum of $10,000 belonging to the said copartnership to the defendant Jean Taggart without the knowledge and consent of the plaintiff, the said copartner; * * *” was not supported by the evidence. That assertion is likewise unfounded. As to the knowledge Augustus York had of and concerning said loan the evidence was conflicting, but there was no evidence that he ever knew the decedent gave, or that he ever authorized the decedent to give, or attempt to give, to the defendant any part or portion of his interest in the partnership funds.

The defendant argues that it should have been established that, when she executed the contract in suit, she knew the money did not belong to the decedent but belonged to the partnership consisting of the decedent and Augustus York. She cites and relies on Babcock v. Standish, 53 N.J.Eq. 376, 33 A. 385, 30 L.R.A. 604, 51 Am.St.Rep. 633. That case involved the act of one partner paying his personal debt with partnership funds. It is not claimed in the instant case that the decedent did such a thing. This plaintiff is suing as the surviving partner to enforce his rights to the possession of the partnership assets. He has the clear right to do so. 20 Cal.Jur. 807, “Partnership”, sec. 105; Prob. Code, sec. 571; Gray v. Palmer, 9 Cal. 616, 636, 637.

The defendant complains because the relief granted by the judgment varied from the relief asked in the prayer of the plaintiff's complaint. However, as the defendant had filed an answer the trial court was authorized to grant each party any relief consistent with the case made by the complaint and embraced within the issue. Code Civ. Proc., sec. 580.

We find no error in the record. The judgment is affirmed.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concurred.