Carpenter v. Hathaway

Citations

• 87 Cal. 434
• 25 P. 549
• 1891 Cal. LEXIS 1000

Syllabus

<p>Contracts — Oral Agreement — Subsequent Memorandum — Merger. — Where an oral agreement has been made and partially performed, a writing subsequently given as a mere acknowledgment or memorandum thereof, and containing nothing inconsistent therewith, does not operate to merge or supersede an express provision of the oral agreement not included in terms in the memorandum.</p> <p>Id. — Partnership in Lands — Time for Division of Profits. — An oral agreement for a partnership in the purchase and sale of lands to be acquired and sold in the name of one partner, with an express provision that the net proceeds of each sale were to he equally divided immediately after the sale, is not merged or superseded as to such provision by a subsequent memorandum, made after certain lands were acquired under it, which consisted of a mere written acknowledgment by the partner who had acquired the title to the land, that he had acquired it, and that it was understood and agreed that the other partner was to share equally in the net profits of the land, without stating the time of division.</p> <p>Id.—Refusal to Account — Action for Dissolution and Accounting — Maturity of Oause of Action.—Upon the refusal of the partner holding the legal title to account after a sale by him of part of the partnership lands, an action will lie in favor of the other copartner for a dissolution of the partnership and an accounting of the profits of the land sold, and to establish his interest in all the unsold lands acquired under the verbal agreement.</p> <p>Partnership — Accounting —Purchase of Land — Interest. —Interest, if not stipulated for in the partnership agreement, cannot be allowed on the purchase-money of the lands bought for the partnership.</p> <p>Id. — Taxer and Expenses — Appeal — Objections for First Time.—■ It cannot be objected upon appeal that no allowance was made to tlis defendant for taxes and necessary expenses incurred in reference to the lands, the net profits of which were to