Stower v. Kamphefner , 6 Cal. App. 80 ( 1907 )

Action for accounting and dissolution of copartnership. The appeal is from the judgment.

The issues were referred to a referee, and upon the filing of his report the court adopted the same as its finding and rendered an interlocutory decree dissolving the partnership, and ordered the referee to sell the assets then belonging to the firm and pay the proceeds received from the sale thereof to the creditors. The referee, after making the sale and disbursement of the proceeds in accordance with the order, so reported to the court, which thereupon rendered its final decree, from which this appeal is taken.

Appellant contends for a reversal of the judgment upon the ground that there is no finding as to whether or not certain buildings belonging to the partnership constituted real or personal property. The buildings in question consisted of an oil-house, coal-house, barn and walls of a store building. The objection as to all of said buildings, other than the walls of the store building, is fully answered by that part of the report wherein it is found: "The assets at this date are . . .unsold personal property, wagon scales, barn, two tanks, one coal-house, one oil-house."

It is further contended the court failed to find what interest, if any, the partnership had in the lands upon which such buildings were located and in whom the title in said lands vested. The real estate upon which the buildings were erected was not included in the report of the referee, which purports to cover all the assets of the firm, and as the assets did not include the land it was immaterial in whom the title vested, inasmuch as it was not a partnership asset.

The store building was destroyed by fire on July 16, 1903. The report of the referee was filed November 22, 1904. Among other assets, it was found that the firm, at the time of the fire, owned "walls of store building." These walls were not included in the assets at the time of making the report, and we must, therefore, conclude that, like other assets of the copartnership, they had been legally disposed of, and the proceeds arising from such disposition applied in reduction of the liabilities. The valuation placed upon these walls is $400. Appellant is charged with "building" in the sum of $400, and it is apparent that the "walls of store building" reported among the assets after the fire and thereafter charged to appellant as "building" are identical.

It is further objected that the findings do not describe the lot in Glendora, and, hence, there was no finding to support the description of this lot as set forth in the interlocutory decree. We can see no reason for giving a particular description of the lot, any more than to particularly describe other of the assets belonging to the copartnership; nor does appellant cite us to any authority requiring such description.

There is no ground for the contention that the findings are inconsistent. The "sundry unpaid accounts, amounting to $392.80," added to the "balance due A. C. Stower," separately found, constitute the "present liabilities" of $1,610.26.

"No personal decree is to be rendered against individual partners until the assets have been converted into money." (Clark v. Hewitt, 136 Cal. 77, [68 P. 303]; Rosenstiel v.Gray, 112 Ill. 282.) It sufficiently appears there was a full and complete accounting of the copartnership affairs before the rendition of the final decree, and that all the partnership assets had been marshaled and converted into money before the decree was rendered.

The judgment is affirmed.

Allen, P. J., and Taggart, J., concurred.