Sime v. Malouf

This is an appeal by defendants A. B. Malouf, W. B. Malouf, B. B. Malouf, Bertrand L. Ball, Sperry Lawson, Ben Mar Hills Corporation and Ben Mar Hills Apartments, Inc., from a judgment against them in the amount of some $77,000 for fraud and conspiracy to defraud. The complaint originally named various other defendants among whom were five individuals who were directors of Edgerton, Riley and Walter, a dissolved corporation, at the time of its dissolution, Paul T. Sunday and Zack J. Parmer. Sunday died during the pendency of the action and a nonsuit was granted in favor of his personal representative who had been substituted as a party defendant. The court rendered judgment in favor of defendant Parmer and the above mentioned directors. Except as otherwise indicated, the word “defendants” will be used herein to refer collectively to the Maloufs, Ball, and Lawson.

Edgerton, Riley and Walter (herein referred to as E. R. & W.) was a corporation, now dissolved, which in 1937 was engaged in bond and stock brokerage business in Los Angeles. There were only nine shareholders all of whom, with the exception of Mr. Cecil B. DeMille, who was the majority stockholder, took an active part in the company affairs. Mr. DeMille’s interests were represented through Mr. Treaey. Plaintiff, Harry Sime, had been employed by E. R. & W. prior to 1937 as a salesman of securities. In 1937, plaintiff and E. R. & W. entered into an agreement evidenced by a letter under date of November 18,1937, signed by J. E. Edgerton as president, and J. D. Plora as assistant secretary of E. R. & W., bearing the corporate seal, which letter was endorsed “accepted” by plaintiff. The court found this agreement had been duly executed and also that it had later been ratified by E. R. & W. The material portions of the letter read as follows: “This is to confirm our agreement relative to bonds acquired by the undersigned company in the City of Burbank in the district commonly known as Ben Mar Hills. We agree to furnish necessary capital for the purchase of any outstanding bonds or property in said section of said city and provide

On February 1, 1939, an action was filed by one William E. Smith, a resident of the city of Burbank, to enjoin the performance of the terms of the contract between the city and E. R. & W. Smith had no interest in the action and it was, in fact, instigated by one B. W. Marks, who later became associated with the Maloufs and Lawson in the enterprise. The

On January 12, 1940, Paul T. Sunday, who had acquired and owned a 50 per cent interest in the Burbank project together with E. R. & W. and Sime, commenced an action entitled Sunday v. Edgerton, Riley & Walter, et al., to enjoin the sale on the ground that E. R. & W. had no right to sell without his consent. Sime, who had been named as a defendant in the Sunday action, filed a cross-complaint to enjoin the sale as being invalid as to his interest. Shortly after the filing of the cross-complaint Ball attempted to induce Sime to sell out his interest for $7,000 but Sime refused. This offer was later repeated and although Sime again refused he agreed to permit Sunday, who was trying to sell his own interest, to carry on negotiations in an effort to settle the entire matter. About February 13, 1940, Sunday told Sime that Farmer would pay $12,500 for Sime’s interest in the payment and E. R. & W. would cancel Sime’s indebtedness to it amounting to about $3,100. Sime accepted the offer. Pursuant to his agreement with Sunday, Sime and Travers and their respective wives executed a release of all claims against E. R. & W., Sunday and Ball; executed instruments of transfer; and Sime dismissed with prejudice his cross-complaint. Sunday and E. R. & W. executed an identical release in

The foregoing statement summarizes the essential features of the complaint as incorporated by reference in findings made by the trial court after a trial covering some 140 trial days, the proceedings in which are presented to this court in the form of a 51 volume reporter’s transcript of more than 16,000 pages. The court also made findings to the effect that the defendants conspired to fraudulently deceive plaintiff and acted in concert in acquiring plaintiff’s interest in the project; defendants stood in a fiduciary relationship to plaintiff at the time they purchased his interest; plaintiff in 1937 became the owner of a 25 per cent (later reduced by agreement to a 22% per cent) interest in the project as a joint adventurer with E. R. & W. and Sunday; plaintiff had no knowledge whatsoever, and no means of learning, prior to December 30,1943, that defendants

Appellants have additional counsel on the appeal. They have presented one set of briefs which raise the following points: (1) The action is barred by the statute of limitations and laches; (2) it is barred by a voluntary dismissal with prejudice of Sime’s cross-complaint in the action of Sunday v. Edgerton, Riley & Walter, et al.; (3) it is barred by a release executed by Sime; (4) the judgment based upon findings of fraud is without support in the evidence; (5) there was a defect of parties plaintiff in the failure to join Tad Travers, Kathleen Travers and Iona H. Sime as parties to the action; (6) it was error to render a money judgment against defendants as joint adventurers without terminating the joint adventure.

An additional set of briefs has been filed on behalf of appellant Ball by the attorney who represented the defendants in the trial. In his supplemental opening brief the following additional points are made: (1) That the written agreement relied upon by plaintiff as evidence of the joint adventure arrangement was not duly executed by Edgerton, Riley and Walter; (2) plaintiff was not and could not be defrauded; when he sold his interest in the venture he knew what it was worth.

It is in order to consider first the point raised in the supplemental briefs of Ball that the contract between plaintiff and E. B. & W. was not binding upon the latter because it had not been authorized or ratified by the corporation’s board of directors. The written agreement bore the seal of the corporation, which was presumptive evidence of due exe

We shall consider next the contention that the transaction by which defendants acquired Sime’s interest in the Burbank property was free of fraud. Upon this issue plaintiff relies heavily upon the finding that a fiduciary relationship existed between Sime and the defendants Ball, Malouf and Lawson throughout the questioned transaction. In the principal briefs of the appellants it is not seriously contended that such a fiduciary relationship did not arise out of the initial contract, although it is strenuously urged that if it ever existed it had been terminated before Sime disposed of his interest. In the supplemental briefs of appellant Ball it is insisted that no fiduciary relationship existed at any time, and it is argued also, in the alternative, that if it did exist in the beginning it had been destroyed before plaintiff sold his interest. It is conceded, of course, that if the status of defendants was that of fiduciaries, they were under a greater duty of disclosure than would otherwise rest upon them. The concealment of which they were found guilty was clearly such as the law does not tolerate in fiduciaries. (See Meinhard v. Salmon, 249 N.Y. 458 [ 164 N.E. 545 , 62 A.L.R. 1 ]; 14 Cal.Jur. §§ 4, 7, pp. 763, 766.) It is unnecessary in this connection to elaborate upon the facts. The transaction, as established by the findings, may be summarized as follows: Defendants, joint adventurers with plaintiff in the purchase of bonds and the acquisition of real property through use of the bonds, acting in concert, maintained and controlled litigation to depress the market

It is contended in the supplemental brief of Ball that the parties were not engaged in a joint venture and, therefore, that no fiduciary relationship existed between them. It is said, “the essential elements of a joint venture are joint control and equal power to direct the enterprise,” and that Sime did not have such control or power. Cited in support of the proposition are such cases as Pope v. Halpern, 193 Cal. 168 [ 223 P. 470 ] and Bryant v. Pacific Electric Ry. Co., 174 Cal. 737 [ 164 P. 385 ]. In these and similar cases the requirement that there must be equality of control and authority in the undertaking to constitute the participants joint adventurers, was properly imposed where it was sought to impute to a rider in a vehicle contributory negligence of the driver. The cases are not at all in point here. The common definition of a joint adventure is, “a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation, or as an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.” (48 C.J.S., pp. 801, 802; see, also, Nelson v. Abraham, 29

It is also insisted that the defendants were merely stockholders of E. B. & W. and did not stand in a fiduciary relationship to Sime, even if the corporation did occupy that position. We cannot accord validity to this argument. Ball was president of the corporation and agent of the Maloufs and Lawson in the matter of the ownership of the controlling stock interest. The corporation was under fiduciary duties to Sime and could act only through its officers, directors and other agents. Only through them could it perform or violate its corporate duties. Since the Maloufs, Lawson, and Ball had control of the corporation, it was their duty to see that the corporation fulfilled its obligations as a joint adventurer. They were responsible for the corporation’s breach of duty. Their wrongdoing was not as mere individuals, but as individuals who controlled the corporation. It was through their actions that the duties of the corporation were violated, and they were in fact the wrongdoers. It is idle to contend that stockholders and officers who exercise complete control over the affairs of a corporation may with impunity purposely cause the corporation to violate its duties as a fiduciary, or commit other frauds through the medium of the corporation. (See Young v. Young Holdings Corp., Ltd., 27 Cal.App.2d 129 , 146 [ 80 P.2d 723 ]; Hillman v. Hillman Land Co., 81 Cal.App.2d 174 , 183-184 [ 183 P.2d 730 ]; 6A Cal.Jur. § 22, pp. 75-79, and cases there cited.) It is clear that defendants were under the duties of fiduciaries in matters wherein they controlled and directed the corporation as a joint adventurer.

As a matter of law joint adventurers are fiduciaries. (MacIsaac v. Pozzo, 26 Cal.2d 809 , 813 [ 161 P.2d 449 ] and cases there cited; 14 Cal.Jur. §4, p. 763.) It appears to be contended by appellant ■ Ball that the strained relations between Sime and himself had the effect of terminating the joint venture and, perforce, any existing fiduciary relationship. The contention is not sustainable. The fact that persons engaged in a joint venture may quarrel or be at odds over the business in which they are associated, or may even be involved in litigation with one another, does not as a matter of law relieve them of their fiduciary duties. (Hobart v. Hobart Estate Co., 26 Cal.2d 412 , 434 [ 159 P.2d 958 ]; Wright v. Duke, 91 Hun. 409 [ 36 N.Y.S. 853 , 859]; Olivier v. Uleberg, 74 N.D. 453 [ 23 N.W.2d 39 , 165 A.L.R. 974 ]; 40 Am.Jur. § 130, p. 219. See, also, Ramos v. Pacheco, 64 Cal.App.2d 304 , 309 [ 148 P.2d 704 ].) Although such dissension may provide a sufficient ground for dissolution of the

Compliance with fiduciary duties is exacted as a matter of law from parties to various technical relationships, such as partnerships and joint ventures. But entirely apart from such instances, a fiduciary status may exist as a matter of fact where it would not otherwise be inferred from the mere relationship of the parties. (Bank of America v. Sanchez, 3 Cal.App.2d 238 , 243 [ 38 P.2d 787 ]; 36 C.J.S. 743.) One who voluntarily assumes a position of trust and confidence is a fiduciary, and he remains a fiduciary as long as trust and confidence are reposed in him. (Civ. Code, § 2219; see, also, Robbins v. Law, 48 Cal.App. 555 , 561 [ 192 P. 118 ].) This status may, of course, continue in fact in the ease of partners or joint adventurers after the dissolution of their association,

There can be no doubt that, irrespective of any fiduciary relationship, the conduct of the defendants constituted actionable fraud. The intentional and systematic concealment by the defendants of highly material facts, which were peculiarly within their knowledge and which Sime did not suspect and could not have discovered, was fraudulent. (See Herzog v. Capital Co., 27 Cal.2d 349 , 353 [ 164 P.2d 8 ], and authorities there cited; 37 C.J.S. § 16, pp. 245, 246; 23 Am.Jur. § 80, p. 857.) This was not a mere attempt, as a matter of good business, to prevent Sime from inflating his price above a reasonable figure through nondisclosure of prospects and plans for future promotion of the venture by the purchasers. (Cf.,

Proof that Ball repeatedly, and with knowledge of the untruthfulness of his statements, represented to Sime that he was the owner of a controlling interest in E. E. & W., that Farmer was a bona fide purchaser, and that the sale was a

Defendants challenge the sufficiency of the evidence to justify the findings upon the defense of the statute of limitations. The limiting statute which applies in a fraud action is section 338, subdivision 4, Code of Civil Procedure, namely, three years after the discovery of the fraud. Section 19 of the Civil Code is to be read with section 338, subdivision 4, and reads: “Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact.” Plaintiff’s complaint herein was filed on February 3,1944.

It is asserted and argued at length “that this record demonstrates that Sime knew every essential fact of his present alleged cause of action more than three years before it was commenced.” On this point it is said, “the evidence is solely, overwhelmingly, solidly and indisputably one way. ’ ’ The court made the following finding: ‘1 The court finds that the plaintiff did not learn of the fraudulent conduct of the defendants and of the conspiracy as alleged in the complaint herein, and all as found by the court herein, until after December 30,

Defendants rely chiefly upon certain allegations of plaintiff in his cross-complaint in the action of Sunday v. Edgerton, Riley & Walter, et al. The complaint in that action was filed January 10, 1940; Sime was made a defendant and he filed his cross-complaint January 17, 1940. It is contended that he pleaded practically the identical cause of action which is pleaded in his complaint in the present action. It is pointed out that there is great similarity in the two pleadings. Bach of them gives a history of the transactions between the parties to the time of the filing of Sime’s cross-complaint. Paragraph XIV of the cross-complaint reads as follows: “This cross-complainant is informed and believes, and upon such information and belief alleges the fact to be that said alleged sale of said bonds to Zack Farmer was but a pretended sale, and not a sale in fact, and if made at all, which this cross-complainant says it was not, it was made in furtherance of a scheme and design by parties unknown to this cross-complainant, to the

There was no evidence that, prior to December 30, 1943, plaintiff had any knowledge that the defendants were controlling the Smith suit or that any of them had any interest in the purchase, or that the Maloufs were the owners of the stock of E. R. & W., which stood in the name of Ball. Upon the contrary, plaintiff testified that he had no such knowledge. He testified that the phrase, “pretended sale,” as used in his cross-complaint, merely referred to his contention that in selling its interest in the project, E. R. & W. was attempting

As to the claim of constructive knowledge, the issue was whether plaintiff had notice of facts sufficient to put a prudent man upon inquiry and if so, whether an inquiry, reasonably conducted, would have disclosed to him the true state of affairs. This question, of course, was one of fact for the trial court. (Northwestern P. C. Co. v. Atlantic P. C. Co., 174 Cal. 308 , 312 [ 163 P. 47 ]; Taylor v. Wright, 69 Cal.App.2d 371 , 384 [ 159 P.2d 980 ].) The finding that plaintiff had no such notice, if based upon conflicting evidence or reasonable inferences from the evidence, may not be disturbed by this court. The burden was upon the defendants to lay before us all the evidence which has a material bearing upon their claim that there was no substantial evidence to support the finding. They have done so at some length. Our attention is called to the following facts: There was evidence that in April or May, 1940, plaintiff was introduced to one of the defendants Malouf by Parmer as one of Parmer’s associates. He knew that Ben Mar Hills Corporation was interested in the Burbank project and that the Maloufs and Parmer were connected with the corporation. He had this knowledge in the spring of 1940. In January, 1941, he knew that Ben Mar Hills Corporation had acquired through Farmer all the interest of Sunday in the project. On January 28, 1941, Ben Mar Hills Corporation wrote a letter to Sime, in which it was stated that the corporation had made “the deal with Edgerton, Riley & Walter and Paul T. Sunday” in order to eliminate the opposition of Sime and Travers. Sime received this letter through the mail. In March, 1941, Sime and his associate Travers, sold to Ben Mar Hills Corporation the bonds they had acquired subsequent to February 20, 1940. The agreement of sale which memorialized negotiations taking place in January, 1941, recited that Parmer had acquired for Ben Mar Hills Corporation the interests of E. R & W. and Sunday in the Burbank project. It was alleged on information and belief in Sunday’s complaint, filed January 10, 1940, that Parmer was not acting as a principal in the contemplated sale but as the agent of a principal, whose identity was unknown to Sun

The court found that the Maloufs and Lawson conspired with Ball to acquire Sime’s interest for themselves for as little as possible, and that they artfully concealed all the facts which would have given indication of the existence of the conspiracy. The argument of defendants on the point of notice is but slightly more than a claim that the allegations of plaintiff’s cross-complaint, based upon information and belief, were conclusive upon that question. It was for the trial court to weigh Sime’s testimony against any conflicting admissions or declarations he had made, and it was not unreasonable to conclude that the allegations of the cross-complaint were founded on mere suspicion that Farmer was perhaps acting as agent of the owners of the controlling interest in E. R. & W. The rule of constructive notice demands that “ . . There must appear in the nature of the case such a connection between the facts discovered and the further facts to be discovered that the former may be said to furnish a reasonable and natural clue to the latter. Circumstances that are dubious or equivocal are not sufficient to take the place of actual notice. . . . The rule imputes notice only of those facts that are naturally and reasonably connected with the fact known, and of which the known fact or facts can be said to furnish a clue. It does not impute notice of every conceivable fact and circumstance however remote which might come to light by exhausting all possible means of knowledge. ’ ” (West v. Great Western Power Co., 36 Cal.App.2d 403 , 407 [ 97 P.2d 1014 ] [quoting from 46 C.J. 546, 547]. See, also, Victor Oil Co. v. Drum, 184 Cal. 226 , 240-241 [ 193 P. 243 ].) The circumstances must be such that further inquiry is not merely suggested, but becomes an imperative duty, and failure to make it constitutes

Defendants cannot prevail on the point of discovery unless the record shows, as a matter of law, that avenues of inquiry were open to Sime, which, if explored, would have resulted in discovery of the fraud. In order that one who claims to have been defrauded be charged with constructive knowledge of the facts constituting the fraud, it must appear not only that he had notice of facts sufficient to put a prudent person upon inquiry, but also that means for the discovery of the facts were available to him. (Hobart v. Hobart Estate Co., supra, 26 Cal.2d at p. 435; West v. Great Western Power Co., supra, 36 Cal.App.2d 403 , 407; Adams v. Harrison, 34 Cal.App.2d 288 , 299 [ 93 P.2d 237 ].) It is argued by defendants that inquiry made of some of the defendants would have developed the facts constituting the conspiracy, and that if plaintiff had taken depositions in the action of Sunday against B. E. & W. he would thus have uncovered the facts. A sufficient answer is that the trial court did not believe the means of discovery were available to plaintiff in a practical sense. We have no hesitation in agreeing with this view. Plaintiff could not fairly have been charged with notice of facts which he could have learned only out of the mouths of the conspirators, who were successfully endeavoring to conceal them. (Adams v. Harrison, supra, 34 Cal.App.2d 288 , 299; see, also, Kimball v. Pacific Gas & Elec. Co., 220 Cal. 203 [ 30 P.2d 39 ]; Kane v. Cook, 8 Cal. 449 ; Marshall v. Buchanan, 35 Cal. 264 [ 95 Am.Dec. 95 ].) It was a question of fact whether means were available to plaintiff for the discovery of the frauds and the finding on that issue was a reasonable deduction from the evidence.

Another answer is that there was substantial evidence that Sime was dissuaded from pursuing the investigation and prosecuting his cross-complaint by the very frauds which

It appears from the foregoing that the trial court’s conclusion that the action was not barred by the statute of limitations rests upon findings that have ample support in the evidence, both direct and circumstantial. In fact, plaintiff’s contention that he discovered the fraud of defendants within the three-year period immediately preceding the commencement of his action was quite firmly established.

Defendants urge that the action was barred by releases executed by plaintiff. Reliance is placed chiefly upon the release of February 14, 1940, executed by plaintiff and his wife, and Tad Travers and his wife, in favor of E. R. & W., Paul T. Sunday and B. L. Ball. Brief reference is also made to a provision of a contract between Sime and Ben, Mar Hills Corporation, executed subsequent to the sale, and purporting to deprive Sime of “the right to participate further in any deals, negotiations, transfers, suits” concerning the property in question. This agreement, upon its face, is wholly insufficient to bar the present action, and need not be discussed further. The former instrument, on the other hand, was a general release of all claims, causes of ateions, etc., and also a release of “any claim or claims arising out of or connected with the so-called Ben Mar Hills joint venture involving certain City of Burbank Bonds, etc.” It was executed as a part of

We shall consider first the scope of the release. It was prepared by defendants and is to be construed most strongly against them. In our opinion, it did not embrace the claim which is the subject of the present suit. In the first place, the claim did not arise out of the joint venture and was not connected therewith. It came into existence only upon the completion of the purchase by defendants which was a wholly separate transaction. The release related to claims having origin in the joint venture relationship. Since this was terminated through the sale, the release should be understood as terminating also any existing claims of Sime as a joint adventurer such as the right to an accounting and claims of that nature. The release was special as to such claims, and it was clearly the intention of the parties to waive enforcement of any rights arising out of the joint venture that may have existed at the time. That such was their intention is demonstrated by the fact that a release in identical terms was executed by E. E. & W. and Sunday in favor of Sime. The parties in this manner agreed there would be no aftermath of that enterprise. In the second place, it would have required a special reference to the sale transaction to bring it within the

If we were to assume, arguendo, that the instrument executed by plaintiff did constitute a release of the present cause of action for fraud, it would nevertheless follow that a restoration to defendants of the $15,600 received by plaintiff was not necessary to an effective rescission of the release as a prerequisite to the action. Taylor v. Hopper, 207 Cal. 102 [ 276 P. 990 ], Garcia v. California Truck Co., 183 Cal. 767 [ 192 P. 708 ], Westerfeld v. New York Life Ins. Co., 129 Cal. 68 [ 58 P. 92 , 61 P. 667 ], and Winstanley v. Ackerman, 110 Cal.App. 641 [ 294 P. 449 ], upon which appellants rely, treat of fraudulently procured releases of claims which, both before and after the execution of the release, were disputed as to right and as to amount. The Taylor and Garcia cases were personal injury cases; Westerfeld was suing upon an insurance policy which the defendant claimed had lapsed; and Winstanley was a wrongful death action. In such cases it is clear that the

Even if it be conceded, arguendo, that one of the circumstances moving the defendants to pay the money was that a release would be executed there is no basis for a conten

We hold that no restoration of the consideration received by Sime, or any part of it, was required, for the reason that

The briefs discuss at length the question whether the dismissal of Sime’s cross-complaint in the Sunday suit operated as a retraxit and amounted to an adjudication that Ball, and therefore the' Maloufs and Lawson, as joint tort feasors, had not been guilty of fraud in the sale transaction. Much that has been said with relation to the effect of the release applies, to the contention of defendants that the dismissal of the cross-complaint operates as a bar to the present action. Either, one would have been sufficient to accomplish the purposes of. the parties. We deem it unnecessary to decide questions discussed in the briefs as to the. effect that should have been given to the dismissal if it had been shown to be a voluntary abandonment of plaintiff’s claims., A conclusive answer to the claim of res adjudieata is that the dismissal was obtained fraudulently.' Its validity was directly attacked in the present action upon the ground of fraud; and the issue was tried and resolved in plaintiff’s favor. It was vitiated by the judgment in the present action and became a nullity as an adjudication or abandonment of any of Sime’s rights that may have been in issue in the Sunday action.

Defendants,, quite properly, do not question the power of the court tp.make a complete determination of the entire controversy which arose out of the fraudulent conspiracy. Plaintiff clearly had a right to attack the release and the dismissal for fraud and, if successful, to be awarded full relief upon his cause "of action, against which the release and dismissal were asserted. (Young v. Young Holdings Corp., Ltd., 27 Cal.App.2d 129 [ 80 P.2d 723 ]; Raynor v. Mintzer, 67 Cal. 159 [ 7 P. 431 ]; 1 Cal. Jur. §§ 33 to 39 inch, pp. 348-359.) The dismissal did not bar the present action.

.' _ It was. sought by the complaint to recover damages also-from.'Sunday. It was .'.alleged' that Sime entrusted the settlement of his rights to. Sunday, that Sunday represented to him that $15,00.0, or thereabouts, would not be disproportionate. to the- amount .offered to Sunday for the sale of his

While we have discussed the release as if Sime alone had signed it, it will be recalled that it was a joint-release signed by Mr. and Mrs. Sime and Mr. and Mrs. Travers. Twenty-five thousand dollars was divided equally between Sime and Travers, and Sime also received a release of indebtedness of $3,100 to B. R. & W. Defendants did not plead but on a motion to exclude evidence argued that there was a misjoinder of parties in that the other signers of the release were not joined either as plaintiffs or defendants, and this alleged defect of parties is urged on the appeal. However, the arguments on the point all proceed on the theory that before the present action could be maintained it was necessary that the release be rescinded by all signers thereof

We think it is clear that damages were properly awarded plaintiff without decreeing dissolution of the joint venture and directing an accounting. The joint venture ended when Sime sold out to defendants and neither party to it retained a right to an accounting by the other. Moreover, plaintiff’s claim was not one within the scope of the joint venture.

The judgment is affirmed.

Wood, J., concurred.

Valleé, J., did not participate herein.

The opinion was modified and both petitions for a rehearing were denied January 13,1950. The following opinion was then rendered;

Two petitions for rehearing have been filed by appellants. After reading them we deem it advisable to make some minor corrections in the opinion heretofore filed. Also, it is necessary to decide one point that has been raised for the first time on petition for rehearing and to discuss certain statements made by the author of one of the petitions.

In their briefs appellants made the point that Tad Travers, Kathleen Travers and Iona H. Sime were indispensable parties for the reason that they had signed a joint release with plaintiff and “that there could be no rescission of the release without the joinder of all the makers thereof.” In one of the petitions for rehearing it is stated that the point of nonjoinder raised by appellants was not decided and that the failure to decide it “deprives appellants of their property without due process of law and denies to appellants the equal protection of the laws of the State of California.” A reference to the briefs and to our opinion will readily show that the contention of appellants was fully considered and disposed of.

In the same petition for rehearing it is argued that the record shows without dispute that Sime and Travers were joint

Under ordinary circumstances we would be justified in ignoring the point now raised for the first time by petition for rehearing. (Sanders v. Howard Park Co., 86 Cal.App.2d 721 , 723 [ 195 P.2d 898 ], and eases cited.) However, the question whether one not named is an indispensable' party (rather than a merely necessary party, see, Bank of California v. Superior Court, 16 Cal.2d 516 , 521-524 [ 106 P.2d 879 ]), goes to the jurisdiction and may be raised at any time.. (Ambassador Petroleum Co. v. Superior Court, 208 Cal. 667 , 671 [ 284 P. 445 ]; Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232 , 265 [ 73 P.2d 1163 ].) Incidentally, these cases are cited for the first time in the petitions for rehearing., The point will therefore be considered for the reasqn.that it involves a question of jurisdiction.

It appears to be contended in one of the petitions for rehearing that the court found that Sime and Travers were joint adventurers, the- statement being that the trial court found “that Tad Travers had an interest in the ultimate success and profits of the joint adventure” and that one of the findings reads, in part, that certain defendants conspired to defraud “this plaintiff and his coadventurer of the fruits and profits of such venture. ’ ’ Although it might appear from this partial quotation that the court was referring to Travers as Sime’s coadventurer, it clearly appears from the entire finding that the coadventurer mentioned was Bdgerton, Riley and Walter, and not Travers. The question whether Sime and Travers were coadventurers was not raised or tried -or determined by the court. Therefore, the argument now advanced must fall back on the claim, also made by appellants, that it was shown by undisputed evidence that Sime and Travers were coadventurers. Needless to say, we could not regard this as an established fact unless the evidence relevant to. that question was complete, uncontradicted and conclusive, as to the existence of the claimed relationship. Instead of the evidence being complete it was extremely meager, and.it was

But even if the two were jointly interested in the claim, Travers was not an indispensable party to an action brought thereon by Sime, in whose name stood all the property rights involved. (Russ v. Tuttle, 158 Cal. 226 [ 110 P. 813 ]; Ah Tong v. Earle Fruit Co., 112 Cal. 679 [ 45 P. 7 ]; Williams v. Southern Pac. R. R. Co., 110 Cal. 457 [ 42 P. 974 ]; Chow v. Sing, 87 Cal.App. 278 [ 261 P. 1039 ].) Even if Travers should have a meritorious claim against Sime, which, of course, is not a question for decision in the present case, it is not a matter which concerns the defendants. ( 158 Cal. 230 , supra.)

The petition for rehearing makes the further point, which was not raised in the briefs, that the judgment should not have gone against the corporate defendants. Certain facts are stated with relation to the original stock issues of the corporations, but no transcript references are given, nor is it stated that the alleged facts were before the trial court. The point is not one which goes to the question of jurisdiction, and having been raised for the first time on petition for rehearing, will not be considered. (See eases cited, supra.)

" Appellants’ petition for a hearing by the Supreme Court was denied February 8,1950.