Opinion
Department One
APPEAL from an order of the Superior Court of Los Angeles County refusing to dissolve an injunction. Lucien Shaw, Judge.
COUNSEL:
Fuller & Burnett, for Appellant.
J. Noonan Phillips, and Goodrich & McCutchen, for Respondent.
JUDGES: Britt, C. Gray, C., concurred. Harrison, J., Garoutte, J., Van Dyke, J.
OPINION
BRITT, Judge
Plaintiff alleged in his complaint in this action that himself and defendant are partners under the name of the Buffalo Woolen Company, constituted such by an agreement in writing, engaged, it seems, in the business of merchant tailors; and upon information and belief he charged that defendant committed divers specified acts of misconduct in the course of said business; wherefore he prayed a dissolution and an accounting. Defendant answered, denying any partnership with plaintiff, and exhibiting a contract in writing between them, by the terms whereof (as the court below seems to have interpreted it, and we think correctly) the plaintiff was employed by defendant as a salesman upon a salary in said business, with a right to one-fourth of the net profits, if any, but was not made a partner with defendant. At the time of filing such answer defendant filed also a sworn cross-complaint, in which he averred, among other things, that the written contract exhibited in his answer is the same agreement mentioned in plaintiff's complaint; that plaintiff was in his employ as a salesman, and that after the commencement of this action plaintiff neglected his duties in that capacity and harassed defendant in the conduct of his business, and that defendant discharged him; that nevertheless plaintiff holds himself out to the public as a partner in said business and intrudes into defendant's office and place of business and there remains, interfering with defendant's affairs; that he has collected money from the patrons of defendant, due to the latter, and converted it to his own use; that he claims the right to do these things as a partner in the business, and threatens and intends to continue such acts contrary to the will of defendant; and that plaintiff is insolvent. Defendant prayed an injunction to restrain the continuance of said conduct of plaintiff, and the court granted the writ. Afterward plaintiff answered the cross-complaint, denying some of its averments, and reasserting his status as a partner; but he did not deny that his alleged contract of partnership is contained in the instrument described in the pleadings of defendant, or that he attempts to participate in the management of the business, or that he is insolvent. He moved for a dissolution of the injunction; the motion was heard on the pleadings and was denied; hence this appeal.
The main insistence of plaintiff is that, conceding himself to have no interest as a partner, yet the case made shows that at most he is a mere trespasser in defendant's store, and that injunction does not lie to restrain him; citing Mechanics' Foundry v. Ryall , 75 Cal. 601. This case is clearly distinguishable from that; upon the defendant's showing (which for the purposes of this appeal must be said to be quite imperfectly repelled by [57 P. 210] plaintiff's answer to the cross-complaint) it appears that plaintiff is not only a trespasser upon the premises of defendant, but assumes a control over his business, intercepts moneys due to him, and holds himself out to the public as a partner having the right to do these things. Bodily ejection of plaintiff from the premises would not necessarily prevent the continuance of such injuries; nor would an action for damages afford adequate relief, for the reasons, among others, that it would be extremely difficult to ascertain in pecuniary terms the amount of damage, and that plaintiff is admittedly insolvent. No authority in point is brought to our notice, but the following illustrate in some measure the principles which should govern here: Kellogg v. King , 114 Cal. 378; 55 Am. St. Rep. 74; Routh v. Webster, 10 Beav. 561; Brass etc. Works Co. v. Payne, 50 Ohio St. 115; Bates on Partnership, secs. 772, 990; Parsons on Partnership, 4th ed., sec. 216.
Plaintiff also contends that in any event he should have been allowed free access to the store in order to protect his interest in the net profits of the business. On that point it is sufficient to say that the defendant averred positively in his pleadings that the business never yielded any net profit, and offered to submit his books and all his transactions to scrutiny in support of his assertion; and the plaintiff showed no reason why, if there were such profits, his presence in the store is necessary for the protection of his share thereof.
The order appealed from should be affirmed.
For the reasons given in the foregoing opinion the order appealed from is affirmed.