Opinion
Civ. No. 3373.
May 21, 1920.
APPEAL from a judgment of the Superior Court of San Bernardino County. H. T. Dewhirst, Judge. Affirmed.
The facts are stated in the opinion of the court.
W. A. Alderson for Appellant.
Halsey W. Allen for Respondent.
The defendant appeals from a judgment in a suit for partnership accounting. The judgment provided that the assets of the partnership be sold by a commissioner, and upon the return of the commissioner and the equal division of the assets between the parties, a final judgment be entered dissolving the partnership or declaring it dissolved.
[1] The respondent contends that the judgment is a non-appealable interlocutory order. The findings and conclusions of law finally determined the rights of the parties, leaving only the transmutation of the assets into cash and their equal division to be done. The appellant claims that the court was in error in determining that the assets ordered to be sold belonged to the partnership and he claims ownership of them himself. If his contentions in this regard should be sustained by the appellate court after the sale of his property, he would be without remedy or find himself compelled to resort to a doubtful remedy against the purchaser at the commissioner's sale. For all practical purposes of disposing of the issues tried the judgment was final. "The question, as affecting the right of appeal, is not what the form of the order may be, but what is its legal effect." ( Estate of West, 162 Cal. 352, [ 122 P. 953]; Byrne v. Hoag, 126 Cal. 283, [ 58 P. 688]; People v. Bank of Mendocino County, 133 Cal. 107, [ 65 P. 124]; Clark v. Dunnam, 46 Cal. 204. )
[2] There was no written agreement by which the partnership was formed. From the oral testimony of the partners and others, the trial court found that the claim of the appellant that the partnership was one of profits only was not sustained. There was evidence to support this finding and it is controlling on this appeal. The appellant states that there is but one question to be determined, and that is whether the name "Redlands Auto Service" was a part of the assets of the partnership.
From the findings it appears that in May, 1914, the defendant purchased an automobile on which he caused to be painted the name in question. For about three weeks he operated the machine for hire under that name to designate the business in which he was engaged. In June he associated with himself, his brother, who owned another automobile, which was thereafter similarly used. The partnership business was operated under the firm name of "Redlands Auto Service." Shortly after, during the same month, the plaintiff became a member of the partnership, he contributing $640 to the common fund, that being the value of each of the machines then used in the business. In April, 1915, the defendant's brother sold his interest to the partnership, then composed of the parties to this suit. Thereafter the business was carried on under the same name it had been carried on from the time the first partnership was formed. In December, 1914, while the partnership was composed of the three men, the defendant caused the name "Redlands Auto Service" to be registered in the office of the Secretary of State in his own name. This was done without the knowledge of the plaintiff, who was not informed of the fact until after the dissolution of the partnership in July, 1918. During all the intervening time the business of the partnership was carried on under that name. It was further found, and the finding is supported by the evidence and by reasonable inferences therefrom, that at the time of the formation of the partnership the name had no value, but by the joint efforts of the partners in conducting the business from June, 1914, to July, 1918, when the partnership was dissolved, "the goodwill of the partnership business, including the right, title, and interest of said partnership in said firm name, became, and at the time of the dissolution of said partnership was, and now is, of the value of $800."
The appellant's contentions that the adoption and use of a trade name immediately fixes its status as personal property, and that a single act of use with the intent to continue that use confers a right in the original user may be conceded without affecting the propriety of the judgment. [3] The suit for partnership accounting is one addressed to the equitable jurisdiction of the court. ( Andrade v. Superior Court, 75 Cal. 459 -463, [17 P. 531].)
[4] Under the facts found, even though the name was originally owned by the appellant, the court, in adjusting the respective interests of the parties, properly considered all the circumstances. The name, which had been used for three weeks, was of no value. The respondent went into the business carried on by the appellant at the request of the latter as a partner. It was agreed that the appellant's automobile, which had value, should be used in the business, but the ownership retained. It was also agreed that the money invested in the business by the respondent should be used for the purchase of a machine. Before the termination of the partnership each of the partners had in use in the business two automobiles owned by them separately. On dissolution each retained his own tangible property. The name which was worthless when the partnership was formed was an asset and apparently the only asset of the business at that time. It was made valuable by the joint efforts of the two partners. If it had been some other kind of tangible personal property so worthless as not to have been the subject of agreement, but a part of the business establishment when the partnership was formed, and had had bestowed upon it the work of both partners for a period of three years, in use constantly as partnership property and without claim by the original owner, until at the time of the dissolution it came to have a substantial value produced solely by their joint work, it would be manifestly inequitable that it should be given to one only of the two who had produced the value.
[5] It is said in the appellant's brief that the recordation of the name added nothing to his common-law rights. Neither could the secret recordation of the name by the appellant cause any diminution of the rights of his partner. The relationship was confidential and the recordation by one of the partners of the name under which the partnership had been doing business for six months, in contemplation of law, was in the interest of the partnership.
From an examination of the entire record it does not appear that incidental matters touched upon in the briefs require notice here.
The judgment is affirmed.
Langdon, P. J., and Nourse, J., concurred.