Auditorium Co. v. Barsotti

This action was commenced by the plaintiff against the defendants, who were alleged to be partners doing business under the firm name and style of the “Western Metropolitan Grand Opera Co.,” to recover the aggregate sum of $9,739.86 upon three separate counts, the first and second being upon accounts stated for the sums of $2,490.34 and $4,949.52, respectively, and the third count being for money had and received in the sum of two thousand three hundred dollars. The defendant D’Avigneau defaulted, and the action as to him was later dismissed. The defendants Barsotti and Patrizi answered separately, each denying that Barsotti was at any time a member of the alleged copartnership, but each alleging that the defendants Patrizi and D’Avigneau constituted its only members. The only issue presented upon this appeal is as to whether the defendant Barsotti was in fact a partner of his codefendants. The trial court found that he was not and rendered judgment accordingly in his favor. The plaintiff and appellant herein urges that the evidence is insufficient to support the findings and judgment of the court in this regard.

'A review of the record in the case convinces us that the evidence is sufficient to fairly establish the following facts: During the year 1913 the defendants Patrizi and D ’Avigneau were interested in the production of grand opera. In the spring of that year the former of these discussed with the officers of the plaintiff the matter of the organization of a company for the purpose of playing grand opera engagements in San Francisco and Los Angeles during that year. To that end Patrizi became associated with D’Avigneau, and on August 13, 1913, an agreement in writing was entered into between the officers, of the plaintiff and Patrizi and D’Avigneau as parties of the second part by which the former were to advance to the latter the sum of seven thousand five hundred1 dollars on or before August -31, 1913, upon the express condition that the latter should secure on or before said date

[1] Upon the face of the foregoing state of facts we think there was sufficient evidence to support the finding of the trial court that a copartnership was not shown to have existed between Patrizi, D ’Avigneau and Barsotti so as to render the latter liable upon the obligations created as between the former two persons and the plaintiff herein. It is true that the written agreement upon which the plaintiff relies as conclusively establishing such relation, standing alone, would strongly support such a conclusion; and while, as between the parties to it, or as between them and third persons extending credit upon its face as forming such partnership relation, the parties to it would not be permitted to contradict its terms, this principle does not apply to cases where the question as to what the real understanding between the parties signing the agreement was, arises as between them or any of them and outside parties who have in their dealings not known of or depended upon' the existence of a partnership relation. [2] Under such conditions the parties may be permitted orally or by circumstances to show that no partnership in fact was contemplated between them, notwithstanding the terms of their written agreement. It is to be noted in this connection that the words “partners” or “partnership” are nowhere to be found in the writing upon which the plaintiff mainly relies, but that the partnership, if any, is to be inferred from the fact that the parties to it were to share equally in the profits, if any, of the enterprise which the two parties other than Barsotti were to actively engage in. [3] It has been quite uniformly held that the mere agreement between two or more persons to divide the profits of an undertaking

It will thus sufficiently appear that it is our conclusion that the findings and judgment of the trial court are amply supported by the evidence in the case.

Judgment affirmed.

Waste, P. J., and Kerri'gan, J., concurred.