Barber v. Barnes

52 Cal. 650

• Court: California Supreme Court
• Decided: July 1, 1878
• Docket: No. 5780
• Status: Published

Opinion

I. The plaintiff’s cause of action was not barred by the 339th section of the Code of Civil Procedure.

II. No settlement of the partnership accounts was had between them, and all the partnership affairs had not been adjusted, and the provisions of the 339th section of the Code had not commenced running. ( Gleason v. White, 34 Cal. 358; Hill v. Haskin, 42 Cal. 159; Miller v. Brigham, 50 Cal. 615; Ross v. Cornell, 45 Cal. 133; 4 Mylne & Craig, 165—72; Story on Partnership, sec. 221; The Succession of Powell, 14 La. 425.)

J. H. Me Cune, for Respondent.

1. (a) An attachment was levied May 4th, 1874, and everything belonging to the firm, including materials, machinery, account books, etc., was taken possession of by the Sheriff, under and by virtue of said attachment.

(5) The attachment was released May 19th, and the suit settled by the creditors of the firm meeting and appointing one of their number assignee, who collected the debts due the firm, and paid all the creditors ninety per cent, of their indebtedness.

(c) The property that was taken charge of by the assignee, and disposed of by him, composed all the property that the firm had.

(d) The firm of Barber & Barnes never did any business after the 4th day of May, 1874, the day on which the said attachment was levied.

2. The facts are undisputed, and show a dissolution ipso facto of the firm of Barber & Barnes in May, 1874. (Bradbury v. Barnes, 19 Cal. 120; McKloey’s Appeal, 72 Pa. St. 412; Williamson v. Wilson, 1 Bland, 418; Simmons v. Curtis, 41 Me. 373.)

3. The firm having been dissolved in May, 1874, plaintiff’s supposed cause of action is barred by sec. 339 of the Code of Civil Procedure. (Atwater v. Fowler, 1 Eden, 417; Bertine v. Varian, 1 Ibid. 345 ; Kane v. Bloodgood, 7 J ohns. 121; Marquand v. N. Y. Manuf. Co. 17 J ohns. 525-530; MeKloey's Appeal, supra.)

By the Court :

The Court granted a nonsuit on the ground that the cause of action was barred by sec. 339, Code of Civil Procedure. The seizure of the partnership property under the attachment mentioned in the record, and the application of the property to the payment of the creditors of the firm, and the fact that the plaintiff and defendant “ did not do business after the attachment was levied,” did not of themselves necessarily and conclusively operate as a dissolution of the partnership. The commencement of the action by the plaintiff and defendant against Hunt & Anderson to recover a debt alleged to be due to the firm— the action not yet having been determined—tends to rebut any inference of the dissolution of the partnership arising from the facts above stated. It is unnecessary to decide whether the statute will run as against a bill for an accounting from the time of the dissolution; nor, if it does run, what section of the Code would be applicable to .such a case.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.