Opinion
5-5-1958
Claude F. CASIDA, Plaintiff and Appellant, v. Hollis B. ROBERTS, Defendant and Respondent. * Civ. 5657.
Morris B. Chain and William E. Swiney, Bakersfield, for appellant. Baker, Palmer, Wall & Raymond, Bakersfield, for respondent.
Claude F. CASIDA, Plaintiff and Appellant,
v.
Hollis B. ROBERTS, Defendant and Respondent. *
Morris B. Chain and William E. Swiney, Bakersfield, for appellant.
Baker, Palmer, Wall & Raymond, Bakersfield, for respondent.
MUSSELL, Justice.
This is an action for dissolution of a partnership, an accounting and for damages and is before us for the second time on appeal. In the first trial a jury returned a special verdict finding that 'Hollis B. Roberts and Claude F. Casida became partners to mine, extract and sell gypsum and share the profits equally' and it was stipulated by the parties 'that the intention of said verdict was to refer solely to the extraction, mining and selling of gypsum from deposits situated on Section 13, Township 26 South, Range 20 East, M. D. B. & M., Kern County, California.' Judgment was rendered in accordance with this verdict of the jury on October 19, 1953, and the parties stipulated that the accounting issues in the case be heard at a later date by the court. A trial was then had on these issues and judgment was rendered therein in favor of plaintiff on May 19, 1954, for the sum of $21,1004.55, plus interest and costs. On appeal from the judgment of May 19, 1954, it appeared that while the court found that defendant was entitled to an allowance for the use of his machinery and equipment in the settlement of the partnership affairs, it failed to determine the reasonable value thereof and the amount to be allowed therefor. This was held to be reversible error and the judgment of May 19, 1954, on the accounting issues was reversed (Casida v. Roberts, 132 Cal.App.2d 228, 281 P.2d 901) in order that the entire entire accounting issue as to section 13 could be retried. Upon a retrial of this issue the court rendered judgment in favor of plaintiff in the sum of $1,754.55, plus interest and costs, and plaintiff appeals therefrom.
The trial court found in part '* * * that the entire accounting issue has been tried with respect to operations on Section 13 alone; and the court finds that the tonnage produced from Section 13 totals 68,601.42; and that the profit on said tonnage (without deduction for the reasonable rental value of defendant's equipment used in producing said tonnage, hereinafter deducted) is 78 cents per ton, a total profit of $53,509.10; that the reasonable rental value of defendant's machinery and equipment used in operations on Section 13 to produce said tonnage is $50,000; that the balance with respect to operations on Section 13 alone is a balance of $3,509.10 resulting from deducting $50,000 reasonable rental value from the aforesaid profit of $53,509.10; and that the share of each partner in said net profit of $3,509.10 is $1,754.55, determined to be due and owing to plaintiff from defendant as plaintiff's share of the net profits of partnership operations.' These findings are supported by substantial evidence and thus cannot be here disturbed.
It was stipulated at the trial of the instant action that all of the testimony of the witnesses at the former trial and the exhibits be introduced in evidence. In addition thereto further testimony was taken and other exhibits introduced on the accounting issue.
Appellant claims that the court erred in allowing the sum of $50,000 for the use of defendant's machinery and equipment fully operated and maintained at his personal expense and also allowing defendant the expense of maintaining and operating it. However, the report and testimony of the witness Hobson, a certified public accountant was to the effect that there was no such duplication in arriving at the figures used in determining the allowance to show the value of the use of defendant's machinery and equipment (Defendant's exhibit F).
Appellant further claims that the court erred in failing to find the value of the partnership assets at the date of dissolution and that such a finding is required by section 15042 of the Corporations Code, which provides that 'When any partner retires or dies, and the business is continued under any of the conditions set forth in Section 15041(1, 2, 3, 5, 6), or Section 15038(2b) without any settlement of accounts as between him or his estate and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such persons or partnership may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option * * * in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership * * *'
There is no merit to this argument. The record shows the plaintiff did not plead a cause of action based on the provisions of this section and both trials in the superior court were conducted on the accounting issues. Appellant cannot change his theory on appeal.
As is said in Mears v. Jeffry, 80 Cal.App.2d 610, 616-617, 182 P.2d 294, 298: 'Not only did appellant fail to plead that the actions were prematurely filed, but the cases were heard in the lower courts upon a different theory specifically expressed by appellant. In Munfrey v. Cleary, 75 Cal.App.2d 779, 784, 171 P.2d 750, we held, on the authority of numerous cited cases, that as a general rule an issue not presented by the pleadings cannot be considered upon appeal; and in Ernst v. Searle, 218 Cal. 233, 240, 241, 22 P.2d 715, 718, the Supreme Court said: 'The rule is well settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. 2 Cal.Jur., sec. 68, p. 237.' Also see Hayward Lumber & Investment Co. v. Ford, 64 Cal.App.2d 346, 354, 148 P.2d 689.'
It would serve no useful purpose to here review the many pages of testimony and the records upon which the court based its findings where, as here, it can be ascertained therefrom that there is no miscarriage of justice in the accounting rendered. Pizer v. Brown, 133 Cal.App.2d 367, 374, 283 P.2d 1055.
Judgment affirmed.
BARNARD, P. J., and GRIFFIN, J., concur. --------------- * Opinion vacated 337 P.2d 829.