Opinion
APPEAL from a judgment of the Superior Court of the county of Monterey, and from an order refusing a new trial.
COUNSEL:
Gregory & Shipsey, Wm. H. Webb, and James A. Wall, for Appellant.
S. F. Geil, for Respondent.
OPINION
The facts appear in the opinion of the court. THE COURT.
The defendant and plaintiff's intestate were partners, and the complaint is filed to obtain an accounting and settlement [3 P. 412] of the partnership affairs, the plaintiff alleging that there is due from defendant the sum of $3,192.22. An accounting was had, and the court found a balance of $265.90 due plaintiff, for which judgment was rendered. In arriving at this conclusion, the court heard evidence regarding sums drawn from the partnership by the plaintiff's intestate during his lifetime, and charged the plaintiff, as representative, therewith. Plaintiff claims this to be error, and claims that defendant, in order to have the benefit of the allowance, should have presented to the administratrix and judge, for allowance and approval in course of administration, the amount which he claimed as an allowance in this action.
We are of opinion that the allowance and approval by the administratrix and judge were not prerequisites to the right of the defendant to have the accounts adjusted and the amount claimed allowed as an offset in the accounting.
Section 1585 of the Code of Civil Procedure seems to be clear and explicit as to the powers and duties of a surviving partner.
Judgment and order affirmed.