Miller v. Brigham , 50 Cal. 615 ( 1875 )

By the Court:

1. The plaintiff alleges that he is owner, and entitled to the possession of an undivided one-half of the chattels mentioned in the complaint. The defendant, in his answer, admits that he is in possession of the chattels, and alleges that he is the owner thereof. We think that the title of the plaintiff was sufficiently put in issue by the pleadings.

2. The findings are that the property in controversy lately belonged to a co-partnership firm, composed of the defendant and one Crossin, and that before the commencement of the action the latter “sold and conveyed to the plaintiff his (the said Crossin’s) one undivided half interest in said property.” Upon these facts, and the further fact that the defendant had, upon demand made by the plaintiff, refused to let the latter into possession of the chatties, the court below gave judgment for the plaintiff. But we are of opinion that upon these facts the action cannot be maintained. The effect of the assignment by Crossin to the plaintiff was to dissolve the co-partnership and to vest the plaintiff with a right to insist upon an account of the joint concern, and to have whatever his assignor would have been entitled to upon a settlement of the affairs of co-partnership, and in the meantime the defendant Brigham is entitled to the possession of the property for the purpose of winding up the affairs of the dissolved co-partnership.

It is unnecessary to go over the authorities which support this proposition. Some of them will be found collated in Parsons on Partnership, 2d ed., p. 160, note C.

Judgment reversed and cause remanded.