Opinion
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of San Diego County. E. S. Torrance, Judge.
COUNSEL:
The nonsuit should not have been granted, as, although the evidence shows that the contract was entered into by Reid Brothers with the opera house company, it was made with John C. Fisher, as agent and president of the company, and his acts were adopted and approved by the company. And, although the assignment of the claim and lien was made by one partner alone, it was valid, as a general partner has authority to do whatever is necessary to carry on the business in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing. (Civ. Code, sec. 2429; Parsons on Partnership, 163; Mechanics' Bank v. Hildreth, 9 Cush. 360; Russell v. Swan , 16 Mass. 314.)
Gibson & Titus, for Appellants.
Fox & Kellogg, and Parrish & Mossholder, for Respondents.
One partner alone has no power to make an assignment of partnership property. (Civ. Code, secs. 2229- 31, 2406, 2410, 2411; Croswell v. Lehman , 54 Ala. 363; 25 Am. Rep. 684; Nelson v. Hayner , 66 Ill. 487.)
JUDGES: In Bank. Garoutte, J. Harrison, J., Temple, J., and McFarland, J., concurred.
OPINION
GAROUTTE, Judge
The present action is a consolidated action involving the respective rights of plaintiff as a mortgagee, and the rights of defendants and appellants as owners and lien claimants. This appeal is brought by J. W. Reid, a lien claimant, who was nonsuited by the trial court, the appeals of all the other appellants having been heretofore dismissed upon motion. Reid's rights are based upon a claim for services as architect in the preparation of plans and specifications to be used in the erection of the San Diego Opera House, and as the superintendent of such building during the process of construction.
Respondent presents various grounds as sufficient to sustain the action of the trial court in granting the nonsuit, and we assume that the best reasons disclosed by the record have been advanced. We proceed to examine them in detail.
1. The contract upon which Reid seeks to recover is stated in his claim of lien as follows: "That on or about the twenty-second day of January, 1889, the said Reid Brothers entered into a contract with John C. Fisher, as agent of the said owners, under and by which said Reid Brothers agreed to furnish the said architectural drawings, plans, and specifications, and to superintend the erection and construction of said building; and the said Fisher and said San Diego Opera House Company, a corporation, agreed to pay for the said architectural drawings, plans, and specifications.. .. an amount of money equal to five per centum of the total cost of construction, erection, and completion of said building."
It is now asserted that the lien claimant at the trial must stand upon [42 P. 155] the contract set out in his claim of lien, and that no such contract was proven. That contract was of the date of January 23, 1889, while the contract proven was entered into on or about April 27, 1891, being more than two years subsequent to the date set forth in the claim of lien. This is a most substantial variance as to time, but we do not think it so material as to be fatal to the claimant's case. In actions brought for the foreclosure of mechanics' liens the day upon which contracts are entered into is a matter of little importance. It is practically immaterial, for no rights are fixed by it, and nothing is dependent upon it. For the purposes of description and identity the date of the contract is in a sense material, for the party to be charged must have notice of the particular contract upon which the lien claimant intends to rely at the trial. But here the terms and conditions of the contract are stated, and they are the essential elements contemplated by the statute to be stated in the claim of lien. We think them amply sufficient to identify this contract and put the defendant upon his proof, notwithstanding the plaintiff's evidence at the trial as to the time when the contract was entered into varies materially from the date set out in his claim of lien. Indeed, it may be said to be doubtful if the statute requires such a statement in the claim of lien. There was evidence that Fisher entered into the contract individually with the architect; there was evidence that he entered into the contract with the architect as the agent of the opera house company; and there was evidence that the opera house company directly entered into the contract independently of Fisher. Under such conditions a nonsuit should not have been granted for lack of evidence in this regard. Again, there was evidence that the architect agreed to take one-half or one-third of the contract price in stock of the opera house company, and there was other evidence that the full amount was to be paid in money. This evidence also furnished no ground for a nonsuit, and in the face of such a conflict respondent has no right to assume that part of the contract price was to be paid in stock, and has no right to argue therefrom that, consequently, the contract was void and the nonsuit justified. Where there is a conflict in the evidence a motion for a nonsuit should never be granted.
3. The evidence discloses that neither Fisher nor the opera house company was the owner of the real estate upon which the building was subsequently constructed, in January, 1889, when the contract is alleged to have been made, but we do not think this fact is material. We know of no reason why parties desirous of erecting buildings have not the right to contract for their erection, even though at the time they do not own the realty upon which the buildings are to be erected; and we do not see how the question is at all material or pertinent to any litigation which might subsequently arise from the claims of lienholders; but beyond this, we have shown that the date of the contract was a false date, and the evidence fully indicates that when the contract was actually entered into, in April, 1891, Fisher, or the opera house company, or both, were the owners of the property, and were the owners at all times when work was being performed in the construction thereof.
4. The claim of lien was filed by Reid Brothers, a partnership consisting of three brothers, of whom this appellant was one. Plaintiff brought this action, relying upon an assignment from the partnership. This assignment was in writing, and was made by plaintiff in the name of the partnership to himself, individually. Respondent attacks this assignment as invalid. In Caulfield v. Sanders , 17 Cal. 570, it was held that one partner might transfer a partnership account to a third party, and we see no reason why the same rule does not apply in the present case; but we think it sufficient to say that the other members of the firm are not here objecting to the assignment; and, as against all parties standing in the position of these respondents, we think it sufficient.
We find nothing further disclosed by the record demanding our consideration.
For the foregoing reasons the judgment in favor of the plaintiff and defendant, Fisher and the San Diego Opera House Company, as against the appellant Reid, is reversed.