Opinion
Hearing Granted Jan. 28, 1943.
Appeal from Superior Court, Los Angeles County; Walter S. Gates, Judge.
Action by Frank Emery Tiffany against George A. Short and another for the dissolution of a partnership and an accounting wherein defendants filed a cross–complaint for rescission of the partnership contract and return of their money. From a judgment for plaintiff, defendants appeal.
Affirmed.
COUNSEL
Allan J. Carter and Carroll Weberg, both of Pomona, for appellants.
Chas. R. Stead, of Pomona, for respondent.
OPINION
McCOMB, Justice.
Plaintiff filed an action for the dissolution of a partnership and an accounting, to which defendants filed a cross-complaint asking for rescission of the partnership contract and the return of their money. After trial before the court without a jury the court found in favor of the plaintiff on his complaint against the defendants and against defendants on their cross-complaint, ordered the partnership dissolved and settled the account between the parties. From this judgment defendants appeal.
Viewing the evidence in the light most favorable to plaintiff (respondent), the essential facts are these:
Plaintiff Tiffany and defendants Short and Hill entered into a written agreement February 17, 1940, by the terms of which plaintiff was to manufacture a certain ultra-violet ray device for the purpose of preventing, curing, and alleviating deafness, which device plaintiff had developed and perfected. Defendant Short was to furnish reasonable sums of money to carry on the manufacturing of the device and to obtain a United States patent. Defendant Hill was to assist in sales of the device. Each of the parties was to share equally in the net income. By May 21, 1940, defendant Short had advanced $2,060 for the partnership. In June, 1940 defendant Hill asked for an accounting. Various negotiations took place which culminated April 8, 1941 by plaintiff’s filing the present suit to terminate the partnership and for an accounting.
It is necessary for us to decide two questions which will be stated and answered hereunder seriatim.
First: Did the plaintiff commit fraud which entitled defendants to a rescission of their contract by
(a) Charging $150 a month to the partnership for laboratory rent and his own services;
(b) Using money of the partnership to buy machinery which he later claimed was his own separate property;
(c) Charging the partnership a higher price for material which he purchased than the price he actually paid for it;
(d) Promising to have the device patented and failing to do so;
(e) Concealing sales of the ultra-violet ray device; and
(f) Representing to defendants that his hearing device had been perfected, tested, and was ready to be produced?
This question must be answered in the negative. The trial court found as follows:
"That it is not true that the plaintiff and cross-defendant fraudulently induced the defendants and cross-complainants to enter into said joint venture with the intention of converting a large portion or any portion of monies so advanced to his own uses and purposes; that it is not true that the plaintiff and cross-defendant did fraudulently or wrongfully convert any monies from the beginning of said joint venture except that the Court finds that $757.20 hereinbefore mentioned was not authorized. The Court further finds that said unauthorized expenditures were not made with fraudulent intent; "
Bearing in mind the following rules:
(1) In reviewing the evidence on appeal from a judgment on the ground that the evidence is insufficient to sustain a finding of fact, all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged, in support of the findings of fact; and
(2) The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence in the record contradicted or uncontradicted which will support the findings of fact (Estate of Winzeler, 42 Cal.App.2d 246, 248, 108 P.2d 720);
we have examined the record and find that there is substantial evidence to sustain the finding of fact set forth supra and each and every other finding of fact upon which the judgment was necessarily predicated.
For example, the plaintiff testified that
(a) Prior to the time he entered into his agreement with defendants he had told both of them that he would take $150 a month from the partnership assets for the use of his laboratory and for his personal expenses;
(b) He did not buy any machinery for the partnership but that the machinery he purchased was for his own account;
(c) He at no time charged the partnership a higher price for material than he himself paid for it; (d) He never at any time promised to apply for a patent for the device which the partnership was manufacturing (the partnership agreement contains no promise upon the part of plaintiff to make an application for patents); and
(e) He did not sell any of the property of the partnership and fail to account for the same.
Defendant Hill testified that plaintiff had explained to the defendants the tests which he had made with his hearing device, to wit, that he had demonstrated it on his own ear and on his mother-in-law’s and had effected a wonderful cure in both instances. This testimony supports the finding that there was no fraud relative to the findings of fact in paragraph (f) supra.
Second: Did the trial court err in allowing plaintiff in its accounting one-third of $553.96, which he found to be the remaining assets of the partnership?
This question must be answered in the negative. The trial court upon dissolving the partnership found, supported by substantial evidence, that the assets of the partnership consisted of $553.96 in cash and certain materials. The cash was in the possession of plaintiff and the court ordered him to pay two-thirds of the cash to defendants, allowing him one-third thereof. The cash was a partnership asset and under the terms of their agreement they were to share equally in all profits and thus in the absence of an agreement to the contrary the assets were to be divided equally between them. (47 C.J. (1929) 1174, § 861.)
For the foregoing reasons the judgment is affirmed.
MOORE, P. J., and W. J. WOOD, J., concurred.