Opinion
November 14, 1917.
George M. Burditt and Stuart G. Gibboney, for the appellant.
James Farrell, for the respondent.
The only question presented upon this appeal is whether the sale by the plaintiff to Davis operated to convey his part of the prior earnings of the boat, and bars his right of action against the defendant for an accounting.
I am of opinion that the trial court erred in so holding. The language of the transfer by the plaintiff to Davis is explicit. It purports to sell only "the undivided 34/100 interest of the said St. S. or vessel, together with the undivided interest, the masts, bowsprit, sails, boats, anchors, cables, tackle, furniture, and all other necessaries thereunto appertaining and belonging." This sale did not put Davis in the exact position the plaintiff held. He did not purchase that position or become a partner by reason of the transfer. He bought and paid for an undivided interest in certain specified property held by the plaintiff and defendant as tenants in common, and thereby became one of the common owners of the property. I think it is clear that the plaintiff retained his interest in the prior earnings and in any other property held in common or for partnership purposes.
It follows that the judgment appealed from must be reversed, with costs to plaintiff, and judgment directed in favor of the plaintiff for an accounting and for the amount found due upon the accounting from the defendant to the plaintiff under sections 1317 and 1345 of the Code of Civil Procedure, with costs.
All concurred.
Judgment reversed, with costs and judgment directed in favor of the plaintiff, with costs, for an accounting and the amount that may be found due from defendant to the plaintiff upon the accounting under sections 1317 and 1345 of the Code of Civil Procedure.