
    Joseph Barco, complainant, v. Luicci Tucillo et al., defendants.
    [Decided October 6th, 1924.]
    Partnership — Grape Business — Alleged Abandonment of Partnership by One Member and New Partnership With One of the Remaining Members — Original Partnership Found to Have ■ Continued — Accounting Ordered.
    On bill, &c.
    
      Messrs. McT)ermoll, Enright & Carpenter, for the complainant.
    
      Mr. Horace L. Allen, for the defendant Luicci Tucillo.
    
      2Iessrs. Lichtenstein & Lichtenstein, for the defendant Saverio Corrado.
   Fielder, V. O.

In July, 1922, the complainant, Barco-, who was then, and still is, a resident of San Pedro-, California, while on a visit at Hoboken, in this state, pro-posed to the defendants Tucillo-, Golizio and Lombardi that a partnership be formed for the purpose of buying grapes in California and shipping them to Hoboken for sale. The four men agreed to form a partnership, in which a fifth Hoboken man, to- be secured, was to be included, to which Barco ivas to- contribute $5,000 and the other four were to- contribute $2,500 each, and in which the- profits and lossess were to be shared in proportion to their contributions. Barco- returned to- San Pedro- the latter part of July, or early in August, and thereafter the three Hoboken men persuaded the defendant Corrado- to join the partnership. These four Hoboken men deposited $2,500 each in a common fund in the First National Bank of Hoboken, as their contribution to- the partnership funds, and they then sent Golizio to San Pedro- to represent them. He-arrived there on or about August 29th, and informed Barco that the partnership had been formed, naming Tucillo-, Lombardi, Co-rrado and himself as the partners, and that they had deposited $10,000 in the Hoboken bank for the use of the partnership. Barco and Golizio then proceeded to buy grapes for the partnership, their first- purchase being made by contract with Do-menieo & Rubino-, dated September 8th, 1922, and signed by Barco- and Gilizio. When this contract was signed the partnership funds had not arrived in San Pedro-, and Barco made a payment of $1,500 on account of the contract. The next day Golizio telegraphed the Hobo-ken partners to send him money, and they responded by sending him $8,000, which he deposited -in the First National Bank of San Pedro-, in his name, September 11th, and of which deposit Barco- was informed. September 10th Golizio wrote the Hoboken partners that he and Barco- had made contracts for the purchase of grapes, and that Barco had informed him that he (Barco-) had deposited $5,000 in bank, as his contribution to the partnership. Whether or not Barco actually made such special deposit does not appear, but beyond doubt a partnership of five men had been formed according to agreement, to which the four Hoboken men had contributed the agreed amount. Barco- and Golizio proceeded further with the purchases of grapes, for which Golizio made payment by his checks against the- $8,000 partnership funds on deposit with the San Pedro- bank, which checks were paid by the hank September 3 5th and 17th and October 5th, respectively, and are for a total of $4,589.44. About October 1st, differences arose between Barco and Golizio, and Barco finally notified Golizio that he would do no more business with him, and October 6th Golizio wrote his partners that he needed more money to buy grapes, and that he was buying alone because Barco wanted nothing more to do- with the grape business. In this letter ho speaks of “the fault of the partner I have for nothing has been true of everything that was promised,” and “I find myself in this muddle, and it was for shame sake that T did not return immediately as soon as I saw that things were not going right.” Allowing for the time necessary for mail from California to reach Hoboken this letter must have been received by the partners October 10th or lltli. The partners had sent more money to Golizio, probably before the receipt of his letter of October 6th, because he made two deposits of partnership money in his account in the San Pedro hank, both on October 13th, one of $1,475 and the other of $3,200. Upon the receipt of Go-lizio-’s letter of October 6th, the partners at once sent Tucillo- to- San Pedro-. He reached Barco’s homo October 16th, so late at night that he aroused Barco from bed to talk with him. Barco- told Tucillo- that he was disgusted with Golizio and was through with the partnership. They talked .for some hours, and the result of their conversation is in dispute. Tucillo-’s testimony is that lie told Barco there'was money left in the partnership fund, and lie urged Barco to continue to buy grapes, for the partner-shin, and that Barco- agreed; that he did not discuss with Barco- the formation of a new partnership between Barco and himself. Barco’s testimony is to- the effect that Tucillo- that night proposed a. new partnership to- which lie and Tucillo should contribute $5,000 each, and that Barco agreed, and that, pursuant to such agreement, Barco and Tucillo, on October 21st, went to the First National Bank of San Pedro-, where Barco borrowed $10,000 on his note and took Tucillo’s note to- his (Barco’s) order for $5,000, which $10,000 loan was deposited to Barco’s credit, and from which Barco paid for grapes thereafter purchased by him. Barco- maintains that, by this transaction, $5,000 for himself and $5,000 for Tucillo- was raised, which each had agreed to contribute to- a new partnership, in which Golizio, Lombardi and Oo-rrado were to have no- interest, and that the original partnership was at an end, while Tucillo says that he has no- recollection of signing a note to Barco- for $5,000, and that the original partnership continued.

Tucillo must have known that the money used by Barco for the purchase of grapes'after October 16th did not come from the funds of the five partners on deposit in Golizio’s name, but he makes no- explanation of the source from which said purchases were paid, except as to $1,500 which he received from his partners October 21st and gave to Barco. Notwithstanding this, and notwithstanding that the proo-f is clear that Barco- did raise $10,000 in the manner stated, and that Tucillo did sign a note to- Barco’s order fo-r $5,000, that Barco paid for grapes bought by him October 17th and 19th from his own funds and paid for grapes thereafter bought by him from the $10,000 proceeds of the discount of his note, I am not convinced that the old partnership was abandoned by Barco and that a new one was formed by him with Tucillo-, for reasons which I shall presently state. I think that after Tucillo- had come from Hoboken to- see Barco, and they had talked over the partnership troubles, Tucillo induced Barco to continue with the original partnership upon the assurance that Barco need no longer associate with Golizio in the purchase of grapes, but co-uld do- the purchasing by himself, and because Barco- wo-uld have no further relations with Golizio and could not draw on the partnership funds which were on deposit in Golizio’s name, new funds were required, and, pending their arrival from Hoboken, Barco and Tucillo raised the $10,000 fund in the manner testified to by Barco.

It does not seem probable that Tucillo, who had put up Ms money for a partnership of five persons, who- had arrived in San Pedro in the interest of that partnership, who had not yet seen Golizio, and had not learned from Golizio the reasons for or the cause of Golizio’s. troubles with Barco, would immediately desert his friends and form a new partnership with Barco, with whom he had but a slight acquaintance, and upon whom Golizio, in the letter which caused Tucillo to go to San Pedro, had placed the blame for the partnership difficulties. The fact is that on October 17th (the day after Tueillo’s arrival at San Pedro) Tucillo notified his partners by telegram of his arrival at San Pedro*; that he had found everything right and requested them to wire him all the money they could. In response to this telegram, they wired him $1,500 October 21st, which he gave to Barco and which Barco used for the purchase' of grapes.

While Tucillo was at San Pedro^ Barco made the following purchases of grapes; October 17th, $2,542.32; October 19th. $2,308.23; October 23d, $2,205; October 23d, $2,-431.25; October 23d, $1,947.81; October 24th, $1,968.18, all of which were consigned to Tucillo at Hoboken, when Barco knew that Tucillo would not be there to* receive them, and where they were received by the partners Lombardi and Corra do. Accompanying four of the invoices for these shipments are receipted bills from the sellers of the grapes, made out to "Joe Barca and Louis Tuecello & Go.” Tucillo left for Hoboken on or about October 25th, and thereafter Barco made one more purchase of guapes, namely, on November 3d. for $1,800, which was also consigned to Tucillo at Hoboken, and accompanying the invoice for this shipment, also, is the seller’s receipted bill, made out in the name of “Joe Barca and Louis Tuecello & Co.” I cannot believe that when Barco consigned grapes to* Tucillo at Hoboken at the time Tucillo was in San Pedro, and took receipted bills from the sellers in the name of himself, Tucillo. "& Co,” he did not know that the Hoboken partners would receive the grapes, and did not intend those partners to be included in the description “& Co.”

As further evidence that the partnership of five was still in existence, is a letter written by Golizio to Tucillo at Hoboken, under date of October 25th, requesting the partners to send money for grapes bought under contracts made while Tucillo was at San Pedro* and informing "Tucillo that Barco had bought and paid for another car and needed money. This letter is signed by Golizio* “Barco and Golizio,” and indicates that Barco and Golizio were together again, acting for the partnership.

A letter signed with Barco’s name, purporting to have been written b}r Barco to Tucillo* was admitted in evidence, although Barco denied having written it or authorizing it to be written. It is dated January 6th, 1923, and was sent by registered mail from San Pedro, and the envelope bears Bareo’s return home address. The envelope, its post-mark and the contents of the letter bear evidence that the letter was written at Barco’s dictation, and I am of the opinion that it was so written. It requests a settement of the loss sustained by Barco in a partnership of five persons, and speaks of $15,000 expended by Barco on account of such partnership, and refers to Tucillo’s note to Barco for $5,000. Railing to secure a settlement, Barco’s New York attorney, who sat in court throughout the trial and assisted the trial counsel, wrote a letter dated November 13th, 1923, to Tucillo’s attorney, informing him that he had been retained by Barco in a certain claim against Tucillo'“and two' others,” arising out of a shipment of grapes from San Pedro to Tucillo. These two letters are evidence that Barco considered thát his partnership was not with Tucillo' alone, but with Tucillo and others.

I feel that the facts recited disclose a partnership between Barco and the four defendants, which commenced in August or September, 1922, and continued for some months thereafter, and that all contracts for and purchases of grapes made by Barco during such period for shipment to Tucillo* or to Tucillo and others, were for the partnership of five persons. An account should be taken of all money expended and received by these five partners, or any of them, in connection with the purchase and sale of such grapes.

After Barco had refused, about October 1st, 1922, to have further dealings with Golizio, the latter remained in California and bought grapes for the partnership, paying therefor with partnership money deposited in his name in the San Pedro hank. The account to be taken should also include Golizio’s transactions with the partnership funds.  