Simmons v. Rowe

For a proper understanding of the controverted questions involved in the case it is deemed advisable to make a somewhat extended statement of the pleadings and proceedings presented by the record. In doing so no substantial departure is made from the admirable recital contained in the brief of the learned counsel for appellant.

The lower court found in favor of plaintiff and the Rowe estate and made its interlocutory decree accordingly. From this, and from the order denying his motion for new trial, Philip Simmons, who was adjudged to have no interest in the property, has appealed.

The complaint, in appropriate phraseology, alleges that on and prior to February 20, 1868, the plaintiff, Alonzo R. Simmons, and William B. Rowe and Joseph Simmons and the defendant, Philip Simmons, were partners engaged in business in the city and county of San Francisco, under the firm name of Simmon's, Rowe & Co., and that on said date they purchased for use in their partnership business, with partnership funds, the property in question. This allegation is not denied. The deed, executed by Albert Jacobs, and dated February 20, 1868, and granting the property to “Joseph S. Simmons, Wm. B. Rowe, Alonzo R. Simmons and Philip Simmons, partners in trade and doing business under the firm name of Simmons, Rowe & Co.” was received in evidence.

The complaint further alleges that the partnership continued until May 20, 1872, when the defendant Philip Simmons retired therefrom and sold and transferred to the other members of the firm all his interest and share in and of the partnership property, including the property in controversy, and the partnership was thereafter continued by the other three until January 9, 1892, when it was dissolved by the death of Joseph S- Simmons.

Appellant denies in his answer the sale and transfer by him. The court found it as alleged in the complaint.

The complaint further alleges the death of Wm. B. Rowe, December 29, 1895, leaving a last will, its admission to probate, the appointment of executors and the disposition of his estate by will to certain of the defendants. There is no denial of these allegations.

The complaint in the present action proceeds that plaintiff is an owner of an undivided half of the property and that certain defendants, as residuary devisees under the will of William B. Rowe, are the owners of the other half, subject to the right of possession in the executors for purposes of administration. This is denied by defendant. The court’s finding was in favor of plaintiff.

It is further alleged that the defendant claims an interest in the property by virtue of a deed to him from Joseph S. Simmons, which deed was executed after the commencement of the said action for dissolution of the partnership, and while

The executors and the trustees under the will of William B. Rowe filed an answer admitting the allegations of the complaint to be true, and they also filed a cross-complaint containing similar allegations to the complaint, which were similarly answered by Philip Simmons.

Respondent, in his brief, explains the theory of his complaint based upon certain fundamental and somewhat elementary principles of partnership, and he cites numerous authorities to sustain Ms theory, but we may pass by this part of the discussion, as appellant does not question the sufficiency of the complaint. Appellant, however, attempts to overthrow the judgment by attacking two of the findings. It must be assumed that he has abandoned every other point of attack.

1. He claims that the evidence is insufficient to support the finding to the effect that it was, on May 20, 1872, understood upon the settlement and accounting then had between the parties, and as a part thereof, that the real estate should continue to be a part of the assets of the partnership; and that Philip Simmons should have no further interest therein, other than the mortgage thereon which was given him pursuant to said settlement, and that it was then agreed and

As pointed out by the able counsel for respondent, Philip Simmons himself testified: “I was a member of the firm when the property here in controversy was bought from Mr. Jacobs. It was with partnership money and for a place of business for the partnership. The building was constructed with partnership money. My connection with the partnership was terminated in May, 1872. The other partners agreed to give me $15,000 for my interest and the papers were drawn up. No accounts were drawn off the books at that time that I know of. I then surrendered my position in the firm and went east. 1 retired from the firm as a partner and thereafter did not pay any of the firm bills nor collect any of the firm accounts nor take any part in the management of the firm business. I sold my interest in the firm. At the time I retired from the firm and went east I signed a deed to the property and acknowledged it. I don’t know where the deed is now, but it was never delivered. They were to have the deed, but I never delivered it to them. ’ ’

Alonzo B. Simmons testified: “I heard Philip Simmons say that Joseph had agreed to give him $15,000 for his interest and that the papers were all made out, the deeds and mortgages or whatever it was—mortgages and so forth. Joseph said in the presence of Philip that if I would sign those papers, it there was anything wrong with them they would make it right.” Also, the deed of Albert Jacobs, received in evidence, conveyed the property to “Simmons, Bowe & Co.,” and the mortgage, also, to Philip Simmons of May 22, 1872, covered the whole of said property. The chattel mortgage, likewise, of the same date transferred all the goods and chattels of the firm. Besides, in support of this finding there is found in the record the judgment-roll in the action for the foreclosure of said real estate mortgage in the fifteenth district court. In the answer and cross-complaint in that action it is alleged that on account of illness, Philip Simmons desired to sell to the other partners his interest in the partnership; that it was distinctly understood and agreed by the parties that in case the estimated value of $15,000 should prove to be erroneous or excessive for Philip’s interest, the note and mort

In Crew v. Pratt, 119 Cal. 149 , [ 51 Pac. 38 ], the supreme court said: “It may be stated, as a general proposition, that a judgment is conclusive, not only as to the subject matter in controversy upon which it is based, but also in all other actions involving the same question, and upon all matters involved in the issues which might have been litigated and decided in the case; the presumption being that all such issues were really met and decided.” (Citing Freeman on Judgments, sec. 253; Parnell v. Hahn, 61 Cal. 131 , [ 33 Pac. 731 ]; Lillis v. Emigrant etc. Co., 95 Cal. 553 , [ 30 Pac. 1108 ] ; Woolverton v. Baker, 98 Cal. 631 , [ 33 Pac. 731 ] ; Howell v. Budd, 91 Cal. 342 , [ 27 Pac. 747 ] ; Burris v. Kennedy, 108 Cal. 338 , [ 41 Pac. 458 ] ; Estate of Hudson, 63 Cal. 457 .)

It is significant, also, that in the action to foreclose the mortgage there was no suggestion in the pleadings that the mortgagors were not the owners of the entire property, and it would seem under all the circumstances that appellant is es-topped from denying that they were vested with a complete title, since he permitted them, without objection, to mortgage to him the entire interest. If the finding is not supported by the evidence it is difficult to conceive how the omission could be supplied. It is not a case of the repudiation of the burden and the appropriation of the benefit of a contract, as appellant suggests. The eases cited by him are not in point. There was no repudiation, but an affirmance of the contract as made by the parties. It was and is insisted that effect be given to the real agreement of the parties and the balance

2. The contention is made also that support is lacking for ' the finding in reference to the deed from Joseph S. to Philip Simmons; that it was executed while Joseph was in debt to his partners in excess of his interest in the firm and that Philip, at the time, had knowledge of this fact, and that the deed was ineffective to convey any interest. The only argument in this behalf made by appellant is that “the evidence shows that the deed was taken by Philip Simmons in good faith, on account of what the firm owed him, as well as money owing him by Joseph S. Simmons individually. It is the contention that the deed is valid in the absence of an attack for fraud. ’ ’ This argument is based upon the assumption that Philip was a firm creditor. But adversely to this position the question was settled by said judgment in the foreclosure suit. The judgment was rendered October 19, 1881, while the deed under which appellant claims was executed November 21st of the same year.

Again, there was evidence before the court in the testimony of appellant from which the inference arises that the deed was taken by him on account of what “Joseph owed him generally.” It is to be observed, also, that the deed itself purports to convey simply all the right, title and interest of Joseph Simmons individually in and to the particular piece of property, and it was so understood by appellant, as shown by his answer herein, as he claims only one-fourth of the property by virtue of said deed.

“It is well settled that a partner cannot transfer an individual interest in any specific article belonging to the firm.

A transfer of the partner’s interest, either by voluntary act or legal process, merely entitles the transferee to receive such partner’s share of what may remain after a settlement of the partnership affairs and the payment of the partnership debts.” (Noonan v. Nunan, 76 Cal. 47 , [ 18 Pac. 98 ]; 22 Am. & Eng. Ency. of Law, 104.)

And finally, the decree in the action to settle and adjust the partnership interests adjudged that Joseph was not en

The judgment and order denying the motion for a new trial are affirmed.

Hart, J., and Chipman, P. J., concurred.