Berringer v. Krueger

The plaintiff brought this action to recover from the defendant the sum of $859.56, an alleged balance due the plaintiff for work and labor performed by him for the defendant.

The answer consisted merely of specific denials of the allegations of the complaint, which is in the usual or ordinary form for the recovery of wages or debt for wages.

Judgment was awarded plaintiff for the sum of $705.66. This appeal is by the defendant from said judgment.

Section 430 of the Code of Civil Procedure provides that when the complaint upon its face discloses that there is a nonjoinder or defect of parties defendant, the defendant may raise the question by demurrer, but if such defect does not appear from the complaint itself, then, by authority of section 433 of said code, the objection may be taken by answer. Section 434 provides: “If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, ’ ’ etc. The complaint does not show, upon its face that there was a defect or nonjoinder of par-ties defendant, and, as seen, the defendant failed or omitted' to set up a plea in abatement on that ground. j

[1] In this state the common-law rule that the liabilities of a partnership are joint, or not joint and several, has been expressly adopted into our code (Civ. Code, sec. 2442; see, also, Iwanga v. Hagopian, 39 Cal. App. 584 [ 179 Pac. 523 ]). The action here should have been against all the partners,) if the obligation sued on was a partnership liability and the' defendant was desirous of binding the partnership by this' action. But the case was tried by the defendant upon the theory that the obligation sued on was that of a partnership, evidence having been received without objection tending to show that the obligation was that of a partnership of which the defendant was a member, and, therefore, not his individual obligation. And it has been held that, although a copartner sued separately upon a partnership obligation does not, by either of the two ways laid down by the above-named sections of the Code of Civil Procedure, object to the complaint or the action on the ground of nonjoinder of parties defendant, the question whether the obligation is

The work, compensation for which the defendant seeks by this action, was performed at what are known as “The Wright Mineral Springs,” a health resort. Where these springs are located the record fails to disclose. This, however, is a matter of no consequence.

There is no contradiction of the testimony of the plaintiff that the negotiations leading to his employment were, on the defendant’s part, conducted by the defendant. The defendant, however, claims that the employment was for and on behalf of the “Wright Springs Company,” a partnership of which he and one Miss Mamie Wright were the members. The plaintiff testified that he went to the springs in the spring of the year 1921 in the hope of being cured of a rheumatic affliction from which he was then suffering. While there the defendant employed him to make shakes to be used in the construction of a cabin or a house which the former was erecting. The matter of compensation was agreed upon between him and the defendant and he thereupon proceeded with the work. In the fall of the year 1921 the defendant personally employed plaintiff to remain at the spring as caretaker during the winter soon to follow. He was also to do certain work which was required to be done about the premises. Plaintiff testified that, while he saw Miss Wright at the springs, he had no acquaintance with her, never had any dealings with her in any manner or form, and, although he was aware of the fact that the springs bore the name of “Wright,” he did not know, at the time of his employment or at any other time, until the claim was so made in this action, that Miss Wright was a partner of the defendant, if such was the fact. 'When he first went to the springs, he said, “Krueger had charge of the place. Miss Wright was there”; that a man named Graham was there part of the time and was in the employ of Krueger.

The witness A. R. Wilder, a carpenter, who was engaged in building a house for Krueger at the springs or, as he said, “for the Wright Springs Company,” when plaintiff was employed by defendant, testified that he did not actually know but “supposed” that defendant and Miss Wright were partners in the springs, and that the firm name was “Wright Springs Company.” He said that as a general rule directions as to his work were given by Krueger, but that Miss Wright occasionally took part in directing the affairs of the springs. He stated, though, that there were so many “conflicting orders” relative to the work he was doing and was engaged to do, that he finally asked defendant whose orders he was to obey, and that Krueger said he was himself the boss in the building of the cabin. This witness further testified that Miss Wright was opposed to hiring

The witness Offield, for the plaintiff, testified that he saw plaintiff working (chopping wood) at the springs; that when Krueger left the springs in the fall he left plaintiff in charge of the place, having agreed to pay the latter $2.50 per day for his services. This information, Offield testified, he obtained in a conversation with the defendant. The witness further stated that defendant ne'tfer in his presence said anything about a company; that defendant owed him (witness) for “vegetable or truck” delivered at the springs, and that defendant paid him with 'his personal check.

The defendant, testifying in his own behalf, stated that plaintiff was employed by and performed the services for which by this action he seeks to coerce payment for the Wright Springs Company, a copartnership, consisting of himself and Miss Mamie Wright. It is not necessary to state herein his testimony or even a synopsis thereof. It is sufficient to say that he declared that the obligation sued on was created by the partnership consisting of himself and Miss Wright and was, therefore, a partnership liability. He gave a somewhat detailed recital of the circumstances of plaintiff’s employment by him; but his testimony appears to be characterized by some inconsistencies. In one breath he stated that the property (the springs) where plaintiff performed services were owned jointly by him and Miss Wright; then he declared that he was not a partner of Miss Wright and had no interest in the springs, but that he merely loaned her the money with which to buy' the springs; then, again, he said he advanced the purchase price of the springs and that the property was taken in her name with the understanding that they were to own and manage it as partners.

It may well be conceded that the evidence, taken as a whole, is such that, if the findings had been' in favor of the defendant, this court would not be at liberty, legally, to interpose interference therewith. [2] But the trial court, by which the case was tried without the aid of a jury, was, of course, the exclusive judge of the credibility of the witnesses and the weight to which their testimony was entitled. It was entirely within its legal province, as the trier of the facts, to discredit and so reject the testimony of any

[5] It will not be doubted that, if the defendant, in employing ' plaintiff, was acting, not for himself alone, but for a partnership of which he was a member, then he was acting and did act as agent of the partnership or his copartner. [6] The law of partnership being a branch of the law of agency, “the functions, rights and duties of partners in

We are unable to see our way clear to disturb the judgment, and it is accordingly affirmed.

Plummer, J., and Pinch, P. J.; concurred.