text:
    [Crim. No. 4164.
    In Bank.
    August 9, 1938.]
    In the Matter of the Application of MYRA CRITCHLOW for a Writ of Habeas Corpus.

      Freitas, Duffy & Keating for Petitioner.
    A. E. Bagshaw, District Attorney, for Respondent.
   SHENK, J.

This proceeding in habeas corpiis presents the question of the scope of immunity from prosecution afforded by section 334 of the Penal Code enacted in 1872.

The petitioner, Myra Critchlow, was adjudged guilty of contempt of court by the Superior Court in Marin County for refusing to answer certain questions propounded to her before the grand jury of that county.

In August, 1937, Tony Quadros, chief of police of the town of Sausalito, reported to the district attorney of Marin County that the petitioner, then employed by the Sausalito News, a newspaper published by Frank B. Anderson, had handed him an unaddressed and sealed plain white envelope in which he found $25 in currency. He also reported that the petitioner told him that the money came from the Golden ITill (or Golden Rule) Business Men’s Club, Inc., in Sausalito, whose membership was Chinese, and that he would receive a like sum on the 15th of every month. As the result of investigations then made by the grand jury the petitioner was indicted on two bribery counts on both of which she was acquitted by a jury in December, 1937. In the meantime the Chinese club was raided, arrests were made on charges of gambling, and the place was closed. Trials on those charges were had and the defendants convicted. They paid fines on October 21, 1937.

On February 24, 1938, the petitioner was subpoenaed to appear before the grand jury. She was informed by the foreman that the grand jury was conducting an investigation into gaming law violations in connection with the Chinese Golden Hill Club, and she was asked certain questions. Upon her refusal to answer on the ground that the answers might tend to incriminate her, the foreman read to her section 334 of the Penal Code, which is as follows: “No person, otherwise competent as a witness, is disqualified from testifying as such concerning the offense of gaming, on the ground that such testimony might criminate himself; but no prosecution can afterwards be had against him for any offense concerning which he testified.” The petitioner persisted in her refusal to answer certain of the questions put to her, placing her refusal on the ground that they related to an investigation of bribery charges, as to which she contended the section read afforded her no immunity. The questions asked of the petitioner and which she refused to answer were the following:

“Did Mr. Andy Anderson ever discuss with you the operation of the Golden Hill Business Men’s Club ... ?”
“Did Mr. Anderson ever in 1937 give you any money contained in a plain white envelope with instructions to give that to Mr. Tony Quadros, Chief of Police of the City of Sausalito, and to tell him that was coming from the persons operating the Chinese Social Club ... ?”
“Did you when you gave Mr. Quadros that envelope (referring to one admittedly given on August 7, 1937) or shortly thereafter or at any time thereafter tell Mr. Quadros that Mr. Anderson had given you that money for him and that it was coming from the Chinese Social Club ... ?”
“Did you on October 20, 1937, tell Chief of Police Quadros of Sausalito that Andy Anderson wanted him to have this $25.00 you had previously given him and it was from the Chinese Social Club . . . and Andy said it was alright for him to take the money?”
“Did you in that same conversation with Tony Quadros, Chief of Police of Sausalito, on October 20, 1937, approximately in front of the Sausalito News . . . tell Mr. Quadros you had money in the safe for all of the boys and you did not ■know what to do with it?”

The petitioner attempts to justify her refusal to answer by contending that section 334 of the Penal Code does not offer immunity from prosecution for the offense of bribery to which the questions very plainly relate. It is her claim that the supposed investigation into gaming violations, and the offer of immunity under section 334, was merely a pretense for the purpose of eliciting information from her in connection with the grand jury’s investigation into alleged bribery activities; and that the section does not purport to grant immunity from prosecution for any bribery offense disclosed by any self-incriminating testimony which the petitioner, except for the invocation of the constitutional privilege, would be compelled to give.

The constitutional section (art. I, sec. 13), provides that no person shall be compelled, in any criminal case, to be a witness against himself.

The history of the origin of the privilege and its adoption in this country as an inviolable right by constitutional enactment has often been stated. (Counselman v. Hitchcock, 142 U. S. 547 [12 Sup. Ct. 195, 35 L. Ed. 1110]; Brown v. Walker, 161 U. S. 591 [16 Sup. Ct. 644, 40 L. Ed. 819]; Ex parte Cohen, 104 Cal. 524 [38 Pac. 364, 43 Am. St. Rep. 127, 26 L. R. A. 423]; Duckworth v. District Court, 220 Iowa, 1350 [264 N. W. 715]; In re Doyle, 257 N. Y. 244 [177 N. E. 489, 87 A. L. R. 418, and note at page 435].)

It has never been questioned that, where legislation grants immunity to witnesses in return for testimony, such testimony ceases to be self-incriminating. But in order that the immunity from prosecution be a substitute for the constitutional privilege it must, in addition to eradicating the self-incriminating character of the testimony to be adduced, also exonerate the witness from prosecution for the offense thereby disclosed. The leading case to that effect, followed by the weight of authority in this country, holds that the immunity offered must be coextensive with and a full substitution for the constitutional prohibition. (Counselmcm v. Hitchcock, supra, followed in In re Doyle, supra, Ex parte Cohen, supra, and numerous other eases.) As said in In re Doyle, supra, “To force disclosure from unwilling lips, the immunity must be so broad that the risk of prosecution is ended altogether.”

It is not questioned that the application of the constitutional provision and the immunity statute is not limited to an investigation in the witness’ own case. The immunity may also be asserted in any case by a witness compelled in law to appear and answer before any investigating body. The immunity proceeds from the statutory provision and is not an implied or inherent incident of the power to investigate. (In re Doyle, supra; Ex parte Clarke, 103 Cal. 352 [37 Pac. 230]; Ex parte Cohen, supra; In re Tahbel, 46 Cal. App. 755, 758, 759 [189 Pac. 804].)

In accordance with the foregoing authorities it is apparent that section 334 of the Penal Code grants full protection from self-accusation by reason of testimony which the petitioner might give concerning the offense of gaming. There has been no general immunity statute in this state since the repeal of section 1324 of the Penal Code by Statutes of 1917, page 291. And there is no statute in this state affording immunity in a bribery investigation. The district attorney concedes that two investigations of the activities of the Chinese club were pending before the grand jury: one an investigation of the violation of the gaming laws, and the other of the bribery activities in connection with the operation of that club. He seeks to uphold the action of the court in committing the petitioner for contempt on the theory that the investigations were related and that an investigation into the bribery activities is an investigation of offenses concerning gaming.

The authorities appear to uphold the view that a witness would be protected by the immunity statute, section 334, in giving self-incriminating testimony relating to bribery in an investigation concerning violation of the gaming law, provided the testimony was elicited for the purpose of disclosing the gaming operations, and it was relevant for that purpose. The immunity statute is very broad, providing as it does for protection from prosecution on account of “any offense concerning which” the witness testified. This is not necessarily to be restricted to any “gaming” offense. Had such restriction been expressly made, it is questionable that the statute would have met the test as a complete offer of immunity laid down by the authorities hereinabove cited; and obviously it is not to be read into the statute when the effect might be to lay open to prosecution a witness who had given testimony relevant and material in an investigation, but which disclosed another offense of a class different from that to which the investigation pertained. The statute involved herein was clearly designed to meet the requirements stated in the authorities. Such a construction of the provisions thereof, contrary to the fears of the petitioner, would not leave them open as a sanctuary for criminals within which they could voluntarily confess any crime with impunity, however unrelated to the general matter embodied in the immunity statute. It must therefore be concluded that the legislature intended that meaning which would effect the manifest object of the statute. (Ex parte Cohen, supra.) The Cohen case does not involve the exact situation before us, but the language of the court in that case indicates the correct premises for the foregoing conclusion. The court said at page 531: “The immunity thus given includes not only the offense with which the defendant then under examination is charged . . . but also any other offense with which the witness may be charged, and to which such testimony may have reference or which it may tend to establish. ‘The offense with reference to which his testimony was given’ is broader in its terms and has a wider scope than ‘the offense with which the defendant is charged’, and the exemption from prosecution or punishment consequent upon his giving testimony in reference thereto, when considered in view of the personal privilege given by the Constitution, must receive a liberal construction in its favor. The statute purports to compel him to testify ‘in the same manner as any other person’, and" as the equivalent for his constitutional protection gives him a legislative protection of equal scope and effect by exempting him from all liability to punishment for the offense with reference to which he testifies. The exemption is as broad as the compulsion, and the protection is equal to that given by the Constitution. The testimony which he may be compelled to give is the same as that which could be required of any other witness, and includes any matter within his knowledge which is relevant to the offense under investigation and material to its determination. If, in giving such testimony, the testimony has reference to another offense committed by himself, he is within the protection of the statute, and upon any prosecution for such offense is authorized to plead or prove in bar thereof that under the compulsion of this section he gave testimony with reference to such offense.”

Likewise in the statute here under consideration the language “any offense concerning which he testified”, must be deemed to include any offense concerning which he may be compelled to give testimony material to the determination of the investigation at hand. (United States v. Weinberg, 65 Fed. (2d) 394.) This view also has support in the language used in In re Williams, 127 Cal. App. 424, at 431 [16 Pac. (2d) 172], even though in that case the question was left open whether testimony concerning certain offenses of bribery in connection with the gaming statute would result in immunity. The court said: “What the statute means is that a witness called to testify to facts concerning or relating to the offense of gaming can safely testify for the reason that he is forever free from the possibility of punishment for any crime in the proof of which such testimony would be material. Such a construction is literally what the statute says, and it preserves the whole meaning and intention thereof. Such construction brings the statute within the rule that it must be coextensive with the Constitution.”

Certainly a statute giving immunity in one class of offenses cannot apply or be used to give immunity in an investigation concerning another and different class. (Foot v. Buchanan, 113 Fed. 156; Ex parte Werner, 46 R. I. 1 [124 Atl. 195].) But we cannot accede to the view that the questions asked of the witness here were not so related to an appropriate investigation of gaming violations as to leave the witness unprotected in any answer which she might have given. A witness may not invoke the privilege for the purpose of shielding some third person from prosecution. The compromise afforded by the ancient custom of granting amnesty or immunity is for the purpose of eliciting evidence against other offenders—here offenders against the gaming law. However, the questions asked should have some relation to the investigation in the course of which the immunity is allowed. (People v. Newmark, 312 Ill. 625 [144 N. E. 338]; People v. Boyle, 312 Ill. 586 [144 N. E. 342].) When they do have some relation or connection with the matter under investigation the witness is compelled to testify because the immunity statute affords the protection guaranteed by the Constitution. In this respect the Newmark and Boyle cases, supra, overruled any intimation in People v. Argo, 237 Ill. 173 [86 N. E. 679], and People v. Goldberg, 287 Ill. 238 [122 N. E. 530], that the fact that gambling and bribery may be related afforded no justification for compelling the witness to answer questions as to the offense of gambling to which the immunity statute was not directed. If the question, the answer to which might reveal an offense of a different class, indicates that it is related to the investigation to which the immunity statute is applicable, then the answer is under the protection of the statute. (People v. Rockola, 346 Ill. 27 [178 N. E. 384].) In that case it was said: “While the people may not ask questions of a witness calling for self-incriminating answers which do not show some relation to the bribery charge being tried or investigated, if such questions are so related the order granting him immunity is a complete protection to the witness, and he is not excused from answering the question because his answer may furnish a link in the chain of evidence against him for some other or different offense. The order of immunity protects him. (People v. Boyle, supra.) . . . Nor does the fact that the questions asked may relate to another offense not being tried or investigated furnish an excuse for refusal to answer if it can be seen that such questions also relate to the charge of bribery on trial or under investigation. (People v. Boyle, supra.)

It may not be said, therefore, that in a proper case testimony revealing the offense of bribery committed by the witness in connection with gambling activities then under investigation, would be unprotected by the immunity statute. If, however, answers to the questions here asked could no longer have any bearing in proving the case against the persons charged or to be charged with the offense of gaming, because, forsooth, all of the offenders involved had been tried and convicted, then we must say that the prosecuting authorities or the investigating body could not attempt to misuse the statute by engaging upon a fishing expedition to catch perpetrators of other and different penal offenses. The protection is afforded only when the testimony is given in investigations of offenses which are the subject of the statute, viz., gaming; and not when for any reason the investigation is of a different class of offense. (Maxie v. State, 133 Miss. 243 [97 So. 560].) The district attorney contended before the court which committed the petitioner that the investigation concerning the gaming operations was still pending, and that all violators of the gaming laws involved in the Golden Hill Business Men’s Club had not been apprehended. The court found that such investigation was still pending. It could also properly conclude that the questions were relevant to further necessary proof connecting with the gambling operations persons who had not yet been apprehended. It was therefore acting within its jurisdiction in directing the petitioner to answer the questions hereinabove quoted.

Furthermore, the court properly may have been of the opinion that the testimony sought from the petitioner had reference solely to the offenses of which she was acquitted in December, 1937. The questions themselves so indicate. The petitioner may not invoke the constitutional privilege when the answers she might give would reveal an offense of which she had been acquitted, for the reason necessarily that the testimony could no longer incriminate her, and she is not excused from answering. (Ex parte Cohen, 104 Cal. 524, 528 [38 Pac. 364, 43 Am. St. Rep. 127, 26 L. R. A. 423]; People v. Boyle, 312 Ill. 586 [144 N. E. 342, 346].) From the record here presented we must conclude that the committing court could also have found that the witness had been acquitted of any participation in any bribery offenses which would be revealed by the answers to the questions propounded to her. She therefore could be required to answer those questions, and the court would then be acting within its jurisdiction in adjudging her in contempt for her refusal.

The foregoing examination of the record and evidence before the committing court is within the proper scope of the inquiry which this court may make in this proceeding. (Hotaling v. Superior Court, 191 Cal. 501 [217 Pac. 73, 29 A. L. R. 127]; In re Lake, 65 Cal. App. 420 [224 Pac. 126]; In re Connolly, 16 Cal. App. (2d) 709 [61 Pac. (2d) 490].)

The writ is discharged and the petitioner is remanded.

Seawell, J., Curtis, J., Langdon, J., Houser, J., and Waste, C. J., concurred.

Rehearing denied.


source: Caselaw Access Project

author: BARNARD, J., pro tem.

license: Public Domain

text:
    [L. A. No. 16743.
    In Bank.
    August 9, 1938.]
    ROBERT J. WILSON, Respondent, v. EFFIE F. W. DAVIS, Appellant.

      William Ellis Lady, Jerome H. Kann and Lois Preston Gilbert for Appellant.
    Phil Jacobson and Harold Prudhon for Respondent.
   BARNARD, J., pro tem.

The plaintiff filed for probate a will signed by one Emma IT. Wilson, dated May 17, 1933, and naming him as principal beneficiary and as executor. Shortly thereafter the defendant filed for probate another will, dated October 24, 1933, naming her as principal beneficiary and as executrix. The plaintiff filed objections to the probate of that will upon the ground, among others, that it appeared that the date thereon had been altered. An interesting sidelight on this contention may be found in the opinion in People v. Gilbert, 26 Cal. App. (2d) l [78 Pac. (2d) 770], On January'8, 1935, the defendant petitioned for an order to compel the plaintiff to produce still another will supposed to have been signed by Emma H. Wilson under date of August 22, 1933. This will was never produced and there is a conflict in the evidence with respect to what became of it, and as to whether or not it named the plaintiff herein as a beneficiary.

While matters thus stood certain negotiations or transactions took place between the plaintiff and defendant, after which the plaintiff withdrew his petition for the probate of the will of May 17, 1933, and his objections to the probate of the wall dated October 24, 1933, and in due course the estate in question was distributed to the defendant.

The plaintiff brought this action on the theory that the defendant, in consideration of his making the withdrawals just mentioned, had agreed to pay him the sum of $10,000, which she had failed to do. After a motion to strike large portions of an amended complaint had been granted that complaint still contained, in the first cause of action, allegations to the effect that on January 18, 1935, the defendant requested the plaintiff to withdraw his contest of the will dated October 24, 1933, and his petition to probate the earlier will; that in consideration of such withdrawals the defendant promised and agreed to pay him $10,000; and that on January 20, 1935, the defendant executed and delivered to him a written agreement wherein she agreed to pay him $10,000 in consideration of said withdrawals, which agreement was as follows:

“Jan. 20, 1935
“Dear Bob,
“I feel that you and I should settle our affairs between us without Lawyers So I trust you will not say anything to your Lawyers as well as myself.
“I will give you the equivalent of $10,000 upon the consideration that you will tell the truth about my Dear Sister Will of Aug. 22, 1933, as you know this will left everything to me.
“Bob you know I w’orked and put my money into everything Emma bought and we both agreed that it should go to me if anything happens to her.
“Lots of love to you and Margaret.
“Effie P. W. Davis.”

It is further alleged that because January 20, 1935, fell upon a Sunday the plaintiff requested the defendant to ratify said agreement, which she did by executing the following agreement:

“January 21-1935
‘ ‘ The contract I made to Robert J. Wilson & dated Sunday Jan. 20-1935 I agree to ratify the said contract as of January 21-1935
“Witness: C. S. Ltjddum
11 Effie F. W. Davis.”

It is then alleged that the defendant has failed and refused to pay said sum or any part thereof. In a second count, for money had and received, a recovery of the same amount is sought.

The answer contains a general denial and sets up as a special defense that the plaintiff at one time had possession of another will dated August 22, 1933; that he destroyed this will without the consent of Emma H. Wilson; that after filing a contest to the will dated October 24,1933, he 1 ‘ threatened to expose the conduct and physical condition of the said Emma H. Wilson unless this defendant submitted to certain demands of plaintiff then and there made to the extent of approximately $10,000”; that he further promised that he would refrain from carrying into effect these threats and “would refrain from doing or saying anything detrimental or harmful of and concerning this defendant” if she would give to him the papers mentioned in the amended complaint; and that the defendant would not have given these papers to the plaintiff except for such threats and promises. The answer then alleges that the plaintiff broke these promises by a series of things done by him on and after March 19, 1936, including the filing of this action; that the filing of this and other actions or proceedings by the plaintiff constituted a rescission of any agreement between them; and that the defendant by filing a notice of rescission acquiesced therein.

The action was tried before a jury. At the close of the evidence, with the court’s consent, a second amended complaint to conform to the proof was filed which, among other things, restored many of the allegations which had previously been struck from the first cause of action. The jury returned a verdict in favor of the plaintiff for $10,000, judgment was entered accordingly, and the defendant has appealed.

Many points are raised by the appellant, most of which are based upon the theory that this action is founded entirely upon a written contract, being the writing dated January 20, 1935; that this agreement is nudum pactum since the consideration therein stated, to tell the truth, is in law no consideration at all; that evidence of any other consideration was not admissible; and that it necessarily follows that any agreement between the parties was without consideration. It is respondent’s position, on the other hand, that the action involves an oral agreement between him and the appellant, which was evidenced by certain writings and memoranda signed by her and that a good consideration was both alleged and proved.

The appellant contends that the amended complaint failed to state a cause of action since the agreement on which it is based expresses a consideration which in law is not sufficient, and that the court erred in permitting the filing of an amended complaint to conform to the proof since this had the effect of entirely changing the cause of action. If the complaint merely failed to allege the existence of a valid consideration it might be an interesting question as to how an amendment conforming to proof of such a consideration could be said to entirely change the cause of action. While the amended complaint is far from being a model it does appear therefrom that the writing in question was included therein for the purpose of showing a confirmation of the agreement on the part of the appellant, and not for the purpose of alleging the consideration therefor. It is otherwise specifically alleged that an agreement was entered into between the parties two days before the writing was signed, by the terms of which the respondent was to withdraw his petition for the probate of a will and dismiss his contest of another will in consideration of the appellant’s agreement to pay him the sum of $10,000. The case was largely, if not entirely, tried upon the issues raised by these allegations and those of the answer to the effect that the appellant’s agreement to pay the money had been obtained by a form of duress. In so far as the point now raised is concerned, at least, the allegations of the amended complaint, after the motion to strike was granted, were sufficient to state a cause of action. The amendment later permitted by the court not only conformed to the proof but was in harmony with the real meaning and effect of the original allegations, which affirmatively set forth a valid consideration, and the real cause of action sought to be alleged and thoroughly understood and combated by the other party was not changed or altered in any material respect. If, as the appellant concedes, there was no valid contractual consideration stated, the usual rule applies and parol or extrinsic evidence was admissible to show the true consideration. (County of Los Angeles v. Farnsworth, 4 Cal. App. (2d) 516 [41 Pac. (2d) 577].)

Some fourteen specifications of error in connection with the admission or rejection of evidence are set forth, with the additional contention that the evidence is not sufficient to sustain the judgment. Several of these contentions are based upon the theory that it was error to permit evidence of any consideration other than the one mentioned in the writing which is set forth in the amended complaint. This point requires no further consideration in view of what has already been said. A number of these objections are directed at the admission into evidence of the inventory, appraisement and decree of distribution in the estate of Emma H. Wilson, it being argued that these were introduced solely for the purpose of prejudicing the jury by showing the amount which the appellant had received from this estate, and, further, that the situation is comparable to an action for damages for personal injuries where “evidence of one’s poverty is inadmissible”. We are unable to find these exhibits in the record and are not advised as to their contents. However, this evidence was admissible for the purpose of showing that the respondent had carried out his part of the agreement, that he had given an adequate consideration, and possibly for its bearing upon his good faith in the matter. Complaint is made of the refusal of the court to permit the appellant to introduce the report of the inheritance tax appraiser on the ground that this would have shown that a part of the property in the estate was held by the deceased in trust for the appellant, and that she in fact received under the will only about $30,000 instead of the $60,000 named in the inventory. This evidence was immaterial and could not have affected the result. In a series of points the appellant complains of the refusal of the court to admit evidence offered by her, which it is said would have shown that the respondent did not “lay off” as he had agreed to do and would therefore have disclosed the fact that there had been a rescission. The proffered evidence all went to acts taken by the respondent in an effort to enforce collection of his claim, after the estate had been distributed to the appellant and after she had broken her agreement with him, and was properly rejected. Complaint is also made, in several instances, of the court’s refusal to permit appellant’s counsel to ask certain leading questions and to ask a particular witness concerning certain conversations. If any error here occurred it was cured, since the court later permitted another witness to testify fully as to all of these matters. The most obvious error of the court was in permitting the appellant to go too far afield in her introduction of evidence. The evidence amply sustains the judgment.

Practically all of the instructions given are attacked except those of a general nature. Most of these assignments of error are based upon the contention that the only consideration which could be considered was that expressed in the writing of January 20, 1935, an agreement to tell the truth, and that the other instructions, as to what constitutes a consideration, should not have been given. This requires no further discussion. Several of the other instructions are said to be erroneous because the court “refused to permit defendant to show that plaintiff’s contest was in bad faith’’. In none of these instances is it pointed out where the court refused to permit the appellant to make such a showing. The argument seems to be that bad faith conclusively appears because the respondent knew, because he once had it in his possession, of the existence of a will dated August 22, 1933, which was later than the one he offered for probate. There is evidence that respondent delivered this will to the appellant before the death of Emma H. Wilson and we are pointed to no evidence • either that such a will was in existence at the time of her death or that the respondent had knowledge of such a fact. When the earlier will came into his possession it was his duty to produce it in the absence of definite knowledge that it was not her last will and the fact that he offered that will for probate does not, in itself, show bad faith upon his part. Not only is no evidence called to our attention which discloses that the giving of these instructions was erroneous, but the court adequately covered the matter of any possible bad faith upon the part of the respondent in another instruction which was given.

It is next urged that the court erred in refusing to give ten instructions offered by the appellant. Most of these were either obviously improper or not justified by the evidence, and only one need be here considered. That instruction reads as follows:

“The Court instructs the jury that in this case the defendant has alleged that there was no consideration for the claims of plaintiff. If you find from the evidence that the paper sued upon herein, to-wit, the one bearing the date of January 20,1935, was given only in consideration as therein stated, that Robert Wilson tell the truth about the will of the sister of Mrs. Davis bearing date of August 22, 1933, then I charge you that there is no consideration for the reason that everyone is always required or at least expected to tell the truth of and concerning matters and things. ’ ’

We are pointed to no evidence which would have supported a finding that this “paper" was given only in consideration that the respondent tell the truth about the will mentioned therein. The complaint alleged that two days before that writing was given the appellant agreed to pay the money in consideration that the respondent withdraw his petition to probate another will and allow a third will to be probated. The answer denied generally that there was any consideration for the agreement alleged in the complaint and specifically alleged that the writing was given as a result of duress and that a rescission had taken place. The case was largely tried on these issues. There is ample evidence that the respondent withdrew his objections and permitted the appellant to probate the will she had offered. Even if there were evidence to support a finding that the “paper" mentioned in the instruction was given only in consideration that the respondent tell the truth, the other consideration and agreement alleged in the complaint, and the evidence in support thereof, would still remain. In effect, this was a formula instruction purporting to tell the jurors that there was no consideration and they must find for the appellant if they found one particular thing to be true, when there was another issue, supported by ample evidence, which also required consideration. Even if it could be said that the agreement to tell the truth was the only consideration for the paper itself, and that that writing was therefore void, there was still the matter of a compromise which was alleged and proved. If it be assumed that some instruction along this line could properly have been given such an instruction should have been so limited that a finding on that particular matter would not have prevented the jury from considering the other issues upon which the ease was tried. Under the circumstances here appearing the question of whether or not a good consideration existed was not conclusively determined by the expression of a consideration which appears in the paper dated January 20, 1935.

The appellant contends that this judgment is invalid for the reason that at the time it was rendered she was, in law, an incompetent person and that no appearance was made by her guardian. It may first be observed that the record herein does not disclose any such situation. However, five days after the respondent’s brief was filed a purported “Supplemental Reporter’s Transcript on Appeal” was filed in the trial court and later presented for filing in the Appellate Court but the same has never been filed. If this supplemental transcript were to be considered it contains only a set of findings to the effect that this appellant is incapable of managing her property, an order appointing a guardian for her estate, both dated August 27, 1936, and an affidavit of her attorney filed in the trial court eleven days after the respondent’s brief was filed herein. The general facts relied on are that while this action was pending and on August 27, 1936, the appellant was adjudged to be an incompetent person, that she filed a petition for restoration to competency, that a jury returned a verdict finding her competent on November 24, 1936, that the verdict was entered pursuant to section 664 of the Code of Civil Procedure within twenty-four hours thereafter, and that a formal judgment was not entered by the court until January 7, 1937, after the entry of the judgment here appealed from. Not only is there no proper record before us but it appears from the offered supplemental transcript that the appellant was found competent by the verdict of a jury on November 24, 1936, and from the record herein that about a month after that she testified at great length in the trial of this case. It further appears from the record that at the opening of the trial some question was raised as to whether a guardian for the appellant had been substituted and her attorney not only expressed a willingness to proceed but in effect stipulated that the question of her competency should not be raised, and that she should be considered competent for the purpose of this trial. While the record is in an unsatisfactory condition, the burden of producing a proper record was upon the appellant, and in view of the absence of such a record and the stipulation which in effect waived the right to produce the proper evidence and properly call the matter to the attention of the court at a time when it could be corrected, it cannot now be urged for the first time that the minute entry of the jury’s verdict was not technically a sufficient adjudication of her competency.

It is urged that the court erred in refusing, on the first day of the trial, to permit the appellant to associate two additional attorneys to assist her counsel and in refusing to continue the trial until one of these additional attorneys should be free from other court engagements. The record shows that the court granted the motion as to the association of one of these attorneys and stated that he would make a similar order when the other attorney appeared. It further appears that no request for a continuance was made and the point is without merit. But one other assignment of error will be considered. The appellant moved, on the ground of bias and prejudice, to transfer the hearing of her motion for a new trial to some judge other than the one who had tried the action. At the hearing of that motion, before another judge, the appellant was refused permission to call the trial judge as a witness. The motion was heard on affidavits, including one by the trial judge, but the appellant argues that by a personal examination it might have been shown that said judge was “biased and prejudiced in his rulings” during the trial of the action. Aside from other considerations, the matter of making such a transfer was necessarily largely within the discretion of the judge hearing that _ motion. • Neither abuse of discretion nor prejudice appears from anything which is brought to our attention.

While minor errors appear in the record the case was fairly tried, voluminous evidence was received which amply sustains the judgment, and we are far from convinced that a miscarriage of justice has occurred.

The judgment is affirmed.

Waste, C. J., Edmonds, J., Shenk, J., Curtis, J., Langdon, J., and Houser, J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [S. F. No. 15947.
    In Bank.
    March 28, 1938.]
    JACK KRUG, Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.
    Gavin McNab, Schmulowitz, Wyman, Aikins & Brune, Nat Schmulowitz and James L. Feely for Petitioner.
    George R. Andersen, George Olshausen, Harold M. Sawyer, Gladstein, Grossman & Margolis, William A. Monten, Gilford G. Rowland, Claude Minard and Vernon M. Smith, as Amici Curiae, on Behalf of Petitioner.
    Matthew Brady, District Attorney, City and County of San Francisco, and Edward M. Leonard, Assistant District Attorney, for Respondents.
    Earl Warren, District Attorney, Alameda County, Ralph E. Hoyt, Chief Assistant District Attorney, and Stanley C. Smallwood, Cecil Mosbacher, Deputies District Attorney, as Amici Curiae, on Behalf of Respondents.
   THE COURT.

This is an application for a writ of prohibition to prevent the respondent judge, sitting in the juvenile department of the respondent superior court, from proceeding as a committing magistrate with the preliminary hearing in the ease of People v. Jack Krug. The sole basis for the application for the writ is that the defendant in said action, the' petitioner herein, has made and filed with the clerk of said court and served on the district attorney a peremptory challenge in writing of the respondent judge as provided by section 170.5 of the Code of Civil Procedure. The document merely states that the defendant in said action “does hereby in writing peremptorily challenge the Honorable Frank H. Dunne, Judge of the above entitled court, sitting as a committing magistrate and assigned to try or hear the above entitled cause or pending matter, all in pursuance of the provisions of section 170.5 of the Code of Civil Procedure of the State of California”.

In the proceeding entitled John W. Austin v. Robert B. Lambert et al., opinion and decision in which were filed this day (ante, p. 73 [77 Pac. (2d) 849]), it was declared that said section 170.5 was and is invalid and consequently of no force or effect. On the authority of that case the peremptory writ herein is denied and the alternative writ is discharged.

Rehearing denied.


text:
    [L. A. No. 16528.
    In Bank.
    April 4, 1938.]
    FRIEND W. RICHARDSON, as Superintendent of Banks, etc., Appellant, v. L. C. BUSBY et al., Respondents.
    Clock, McWhinney & Clock, John G. Clock and Walter Desmond, Jr., for Appellant.

      Henry G. Bodkin, John L. Fleming and Leonard Comegys for Respondents.
   THE COURT.

This is an action against stockholders of an insolvent bank to recover on an assessment levied by the Superintendent of Banks pursuant to the terms of the Bank Stockholders’ Liability Act (Deering’s Gen. Laws, Act 652A). The assessment was levied on May 21, 1932. This action was commenced on June 11, 1935. The lower court held that the suit was barred by the statute of limitations, and plaintiff appealed.

In Richardson v. Craig, L. A. No. 16521, this day filed (ante, p. 131 [77 Pac. (2d) 1077]), the same issue was presented as in the instant case, and we there held that the three-year period prescribed by section 359 of the Code of Civil Procedure began to run from the time the assessment was levied. On the authority of said case, the judgment herein is affirmed.

Rehearing denied.


text:
    [L. A. No. 16534.
    In Bank.
    April 4, 1938.]
    FRIEND W. RICHARDSON, Superintendent of Banks, etc., Appellant, v. E. E. BARNUM et al., Respondents.
    John G. Clock and Clock, McWhinney & Clock for Appellant.
    Duckworth & Harrison, Surr & Hellyer, Wilson & Coughlin and Robert Mack Light for Respondent.

      Sullivan, Roche & Johnson, as Amici Curiae, on Behalf of Appellant.
   THE COURT.

This is an action to enforce the liability of stockholders of an insolvent bank on an assessment levied by the Superintendent of Banks pursuant to the terms of the Bank Stockholders’ Liability Act (Deering’s Gen. Laws, Act 652A). The assessment was levied April 7, 1932. The action was commenced on May 17, 1935. The lower court sustained a demurrer to the complaint, holding that it was barred by the statute of limitations. Plaintiff appealed.

In Richardson v. Craig, L. A. No. 16521, this day filed (ante, p. 131 [77 Pac. (2d) 1077]), the same issue was presented as in the instant case, and we there held that the three-year period prescribed by section 359 of the Code of Civil Procedure began to run from the time the assessment was levied. On the authority of said case, the judgment is affirmed.

Rehearing denied.


text:
    [S. F. No. 15915.
    In Bank.
    April 19, 1938.]
    WESTERN LITHOGRAPH CO. (a Corporation), Petitioner, v. STATE BOARD OF EQUALIZATION et al., Respondents.
    Morrison, Hohfeld, Foerster, Shuman & Clark, Louis Ferrari and E. A. Miller for Petitioner.

      U. S. Webb, Attorney-General, H. H. Linney and James J. Arditto, Deputies Attorney-General, for Respondents.
   THE COURT.

The petitioner applied for a writ of mandate to compel the refund to it of taxes amounting to $269.24 paid pursuant to the provisions of the Retail Sales Tax Act of California.

The facts herein are similar to those stated in the opinion this day filed in the case of Western Lithograph Co. v. State Board of Equalization, S. F. No. 15914 (ante, p. 156 [78 Pac. (2d) 731]), with the exception that the bank to which the tangible personal property was sold was the California Bank, a state bank which was a member of the Federal Reserve System. It is claimed that as such member the California Bank is an instrumentality of the federal government, and the same contentions in support of the claim for refund are made here as were made in the foregoing case this day decided. All of the contentions made herein are controlled by the decision in that case. On the authority of that case the petition for the peremptory writ is denied and the alternative writ is discharged.

Rehearing denied.


text:
    [S. F. No. 15916.
    In Bank.
    April 19, 1938.]
    WESTERN LITHOGRAPH CO. (a Corporation), Petitioner, v. STATE BOARD OF EQUALIZATION et al., Respondents.

      Morrison, Hohfeld, Foerster, Shuman & Clark, Louis Ferrari and E. A. Miller for Petitioner.
    U. S. Webb, Attorney-General, H. H. Linney and James J. Arditto, Deputies Attorney-General, for Respondents.
   THE COURT.

In this case the petitioner sought a writ of mandate to compel a refund to it of $558 paid under the Retail Sales Tax Act of California. Tangible personal property was sold by the petitioner to the Hollywood State Bank. The facts therefore are similar to the facts involved in the case of Western Lithograph Co. v. State Board of Equalization, S. F. No. 15914, this day decided (ante, p. 156 [78 Pac. (2'd) 731]), with the exception that the Hollywood State Bank is neither a national bank nor a member of the Federal Reserve System, and is therefore concededly not a federal instrumentality. Nevertheless the contention is here made that the imposition of the tax on the retailer under the provisions of the act results in a taxation of the bank contrary to the Constitution and laws of this state limiting and prescribing the extent to which and the methods by which state banks may be taxed. The answer to that question and related questions is contained in the opinion this day filed in the foregoing case, wherein it is held that the tax is imposed only on the retailer and not on the consumer. That holding is controlling herein and requires the same order as made in that case. The petition for a peremptory writ is therefore denied and the alternative writ is discharged.

Rehearing denied.


text:
    [L. A. No. 16581.
    In Bank.
    June 10, 1938.]
    VIRGIL McCOMBS, Petitioner, v. JUSTUS F. CRAEMER, as Building and Loan Commissioner, etc., Respondent.
    John C. Campbell and Franz R. Sachse for Petitioner.
    Clock, McWhinney & Clock and James C. Ingebretsen for Respondent.
   THE COURT.

This is a companion case to the ease of The Ventura Co., Inc., v. Craemer, this day decided (ante, p. 407 [80 Pac. (2d) 720]). On the authority of that decision and for the reasons set forth in the opinion filed therein the petitioner herein is entitled to the writ of mandamus.

Let the peremptory writ issue.


text:
    [L. A. No. 16582.
    In Bank.
    June 10, 1938.]
    RICHARD SACHSE, Petitioner, v. JUSTUS F. CRAEMER, as Building and Loan Commissioner, etc., Respondent.

      John C. Campbell and Franz R. Sachse for Petitioner.
    Clock, McWhinney & Clock and James C. Ingebretsen for Respondent.
   THE COURT.

This is a companion case to the case of The Ventura Co., Inc., v. Craemer, this day decided {ante, p. 407 [80 Pac. (2d) 720]). On the authority of that decision and for the reasons set forth in the opinion filed therein the petitioner herein is entitled to the writ of mandamus.

Let the peremptory writ issue.


text:
    [L. A. No. 16666.
    In Bank.
    July 19, 1938.]
    HAZEL LE DUC, Respondent, v. MAURICE BLUMENTHAL et al., Appellants. JOSEPH G. SAUCEDO et al., Respondents, v. MAURICE BLUMENTHAL et al., Appellants. GEORGE A. ROLLE, Respondent, v. MAURICE BLUMENTHAL et al., Appellants.
    [L. A. No. 16667.
    In Bank.
    July 19, 1938.]
    [L. A. No. 16668.
    In Bank.
    July 19, 1938.]

      R. D. McLaughlin, Walter I. Lyon, Walter T. Casey and Albert Lee Casey for Appellants.
    Don L. Gilman and Entenza & Gramer for Respondents.
   THE COURT.

These three cases are companion cases to McNeil v. Blumenthal, L. A. No. 16665. (ante, p. 566 [81 Pac. (2d) 567]) this day decided. They are before this court on motion of plaintiffs to dismiss the appeal of defendants from an order of the trial court granting relief pursuant to section 473 of the Code of Civil Procedure, or to affirm the order. The question presented is identical with that determined in the McNeil case. Therefore, on that authority, the respective orders appealed from in these three eases are, and each of them is, hereby affirmed.


text:
    [L. A. No. 16674.
    In Bank.
    July 28, 1938.]
    A. A. BROCK, as Director of Agriculture, etc., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.
    U. S. Webb, Attorney-General, and Walter L. Bowers, Deputy Attorney-General, for Petitioner.
    Mark M. Cohen, Irwin M. Fulop and Victor Ford Collins for Respondents.
   THE COURT.

This proceeding to prohibit the Superior Court of the County of Los Angeles, and the judge thereof, from taking any action in an injunction suit brought against the director of agriculture, except to dissolve the temporary injunction issued in said action, is in all respects, except as to the names of the parties plaintiff in said injunction suit, like action S. F. No. 15994 this day decided and reported ante, p. 682 [81 Pac. (2d) 931], In that case we denied the petition for the writ of prohibition for reasons stated in our opinion in said proceeding. For the same reasons, and upon the authority of our decision in said proceeding, the present petition for a writ of prohibition is denied.


text:
    [S. F. No. 15659.
    In Bank.
    August 19, 1938.]
    NAIM E. ZEIBAK, Plaintiff and Appellant, v. WILLIAM N. NASSER et al., Defendants and Appellants.

      Sullivan, Roche & Johnson, Walter H. Linforth and William M. Cannon for Plaintiff and Appellant.
    Nat Schmulowitz, George B. Harris, Gavin McNab, Schmulowitz, Wyman, Aikins & Brune for Defendants and Appellants.
   THE COURT.

Plaintiff brought this action for dissolution of a partnership or joint venture, theretofore entered into between him and defendants, for an accounting, and if necessary, a sale of the partnership property.

The pertinent facts involved herein are summarized as follows: On or about December 12, 1931, and prior to January 11, 1932, plaintiff and defendants William N. Nasser, Elias Nasser, L. G. Dolliver and Central California Theatres Company (a corporation, organized and owned by seven Nasser brothers, among whom were William and Elias), entered into an oral agreement whereby they contracted to become joint venturers in the acquisition of a certain theatre business, consisting of the ownership and leasehold interest of the New Fillmore Theatre, the New Mission Theatre and the American Theatre, all of which were then owned by the Estate of Greenfield and located in the city of San Francisco. On January 11,1932, the members of the venture submitted a written offer to purchase the business, and agreed therein to assume an outstanding indebtedness of the business, and also obligated themselves therein to expend certain sums of money thereafter and within specified times, as and for the repair and alteration of each theatre respectively. This offer was accepted by the estate, subject to the approval of the probate court. The parties further agreed that should they acquire the said theatres, immediately thereafter they would form a corporation under the laws of the state of California to take over the management and operation of the said theatres; that plaintiff would own an undivided one-half interest, Dolliver a 20 per cent interest, and the remaining defendants, jointly, a 30 per cent interest in the corporation; and that each of the parties would contribute his respective share of funds, if such were found to be necessary, for the maintenance and operation of the said theatres.

On January 28, 1932, the plaintiff and the defendants, other than Dolliver, entered into a written agreement entitled “Memorandum of Understanding Reached and to be Reached”, wherein it was provided in part, that, “The General Management and Administration of the corporation, . . . the scope of which shall be determined at this time to include management and supervision of the said Greenfield Houses and all activities directly and indirectly pertaining thereto, shall be entrusted to the Nassers, and their compensation for aE of said services shaE be fixed upon the basis charged to their subsidiaries for Eke services. . . . Definite understanding shaE also be had concerning the manner of and check upon the disbursement of funds, general poficies, and the manner and extent to which Zeibak shall participate in the joint operation of the business of the corporation, subject however, to the primary general management and administration by the Nassers ... it being understood that when aE details are finally ascertained, formal agreements evidencing the understandings between the parties shall be executed. ...” On the day following, Dolliver and the other defendants entered into a written agreement whereby Dolliver agreed that the exclusive management and control of the business should be lodged in the Nassers, and thereafter Dolliver appears to have assumed the status of a mere investor in the enterprise.

On February 1, 1932, the probate court having approved the sale of the Greenfield interest in the leaseholds and the business, the agreement of purchase was executed by the parties thereto. The amount of the initial payment, to wit, the sum of $50,000 was paid in equal parts by plaintiff on the one hand and the defendants on the other. Thereupon the venture entered upon the operation and management of said theatres. Each of two of the Nasser brothers, other than William and Elias, was given a position as theatre manager of one of the theatres thus purchased. The Nasser brothers also owned other theatres in the city of San Francisco, and the management of the three theatres thus acquired by the venture, was carried on by them in the offices used by Nasser brothers for the management and operation of the other theatres independently owned by them.

Shortly after the business was taken over by the venture, differences arose between plaintiff and the defendants Nasser with regard to the conduct of the business and the respective rights of the parties under the joint venture agreement. These differences continued practically from the date of purchase of the business to the time of the fifing of the complaint. No corporation was formed pursuant to the evident intention of the parties, for the reason that the members of the venture could not agree upon certain terms and conditions which respectively they desired to set forth in the supplemental agreement contemplated by the terms of the agreement, of January 28, 1932, above referred to. Numerous proposals and counter proposals were offered by the parties, each to the other, during this period of time, relating to the terms and conditions each sought to have incorporated in the said supplemental agreement. The parties could not agree, however, upon any certain draft of agreement submitted by plaintiff on the one hand, or by the Nassers on the other, with the exception of one certain draft of agreement, hereinafter mentioned, which was signed by plaintiff on or about October 3, 1932, and by the defendants on or about November 25, 1932, but the executed copies of which were never interchanged by the parties. Despite the lack of harmonious relationship between or among the members of the venture during this period of time, the record shows that the businéss (which had been operating at a substantial loss under its prior management) flourished to a marked degree, and that a very considerable profit was realized by the venture from the operation of the said business.

Plaintiff’s action was founded upon the principal claim that the defendants had wrongfully taken exclusive possession and charge of the business against his will and without his consent, and had wrongfully excluded him therefrom; and particularly, that they had denied him access to the books of the corporation and had refused to give him sufficient information as to the details of the business to' enable him to determine its condition sufficient to protect his interest therein; also that large amounts of money monthly had been paid by the venture as salaries to defendants ’ relatives, without adequate services having been rendered to the venture by such persons. The defendants, however, by way of affirmative relief, and upon the contention that plaintiff had caused the dissolution of the business wrongfully, asked that they be permitted to continue the business upon payment to plaintiff of the value of his interest therein, as contemplated by the provisions of section 2432, Civil Code. As the basis for this request they contended that plaintiff had refused to cooperate with them in the matter of carrying on the partnership business; that he had refused to comply with certain terms of the joint venture agreement and that contrary to the provisions thereof he had asserted rights and demands on his part not contemplated by the terms of said agreement.

During the course of a long trial, on the issues thus presented, defendant L. G-. Dolliver died. With the permission of the probate court so to do, Marie Dolliver, his widow and special administratrix of his estate was thereafter substituted as a defendant in the action in the place of her deceased husband. At this time counsel for plaintiff, by motion, asked the court to enter an interlocutory decree of dissolution and to proceed with the winding up of the affairs of the joint venture upon the ground that the death of Dolliver ipso facto had dissolved the said joint venture. The court denied this motion and proceeded to hear the evidence in the case.

On July 20, 1934, the court made a minute order by which the joint venture was declared dissolved, and therein provided for the appointment of appraisers to appraise the property. It was further ordered that . the defendants pay plaintiff the value of his one-half interest and indemnify him against all present and future liabilities; that the business thereafter should be conducted by defendants, including Marie Dolliver, during the remainder of the period of the leases; that an accounting be had and that the profits be divided between plaintiff and defendants. Thereafter it was further ordered that the appraisement be made as of the date December 11, 1932, as well as of July 20, 1934, and that neither of such appraisals should include the good will of the business. The final judgment was in accordance with these orders and recited that the dissolution of the joint venture occurred on July 20, 1934, “plaintiff having wrongfully caused the same by his conduct”.

The parties hereto have filed cross-appeals. Defendants appeal from portions of the final judgment only. Plaintiff appeals from the whole thereof, and has also made a motion to dismiss defendants’ appeal.

Bach of the parties advances several asserted reasons why the judgment should be reversed or modified in accordance with his or their respective views, but the principal question before this court relates to the question of the sufficiency of the evidence to support the findings, which were favorable to the defendants in all material respects.

Plaintiff’s first contention is that the evidence was insufficient to support the findings relating to the alleged wrongful conduct of plaintiff. These findings are substantially as follows: that during the period of negotiations following the acquisition of the theatres and while the parties were endeavoring to arrive at “definite understandings” prior to the organization of the proposed corporation, there was finally reached a point when a document purporting to be an agreement between or among the parties (and which had been signed by plaintiff prior thereto) was signed by defendants on November 25, but that “when the time arrived for the interchange of said agreement between the plaintiff and the defendants, the said plaintiff on or about December 11, 1932, failed, refused and neglected to deliver” the copy so signed by him, and has since refused' to do so; and that “at all times since on or about December 11, 1932, in contravention of the terms of the agreements and understandings reached between December 12, 1931, and January 11, 1932, and in contravention of the terms and conditions of the agreement of January 28,1932, the said plaintiff has wilfully and persistently failed and refused to proceed with the performance thereunder, but on the contrary . . . has wilfully and persistently repudiated the aforementioned agreements and understandings ’ ’ and has sought to revise the said agreements and understandings and to negotiate new terms and conditions under which the theatres should be maintained and supervised; and that “said plaintiff has been guilty of such conduct as has tended to affect prejudicially the carrying on of the business and has otherwise so conducted himself in matters relating to the partnership business that it is not reasonably practicable for the defendants to carry on the business in partnership with the plaintiff”.

The record discloses the fact that the evidence was amply sufficient to support these findings, notwithstanding it was conflicting in some respects. With regard to the incident of December 11th, referred to in said finding, the evidence showed that on or about October 3, 1932, plaintiff signed a proposed final agreement, to the provisions of which all of the partners had orally agreed. Thereafter, however, and before the defendants executed a duplicate copy thereof, they proposed the addition of another paragraph, to the provisions of which plaintiff objected. Disputes thereupon arose between the respective parties relative to this paragraph and other matters, which resulted in the defendants’ withdrawal of the offending paragraph from the agreement, thus rendering the document free from the objections raised by plaintiff thereto. A copy of the agreement thus restored to its original status, to which all the parties had agreed was then signed by the defendants on or about November 25, 1932, and on or about December 11, 1932, as recited in the findings, plaintiff refused to exchange the copies of the agreement executed by the respective parties. Considering the fact that had he done so his action would have removed the obstacle to the formation of a corporation, an object which all the parties had originally intended to carry out, his failure to do so, after the objectionable matter had been removed from the agreement was at least a violation of the duty he owed his fellow partners of cooperating with them to effectuate the purposes for which all had joined. The evidence also showed that plaintiff had refused to pay his proportionate share of a deficit incurred by the venture in 1932; and that he had failed to join the other members of the venture in the execution of plans for repairs and alterations to be made to the New Fillmore Theatre within the time agreed upon by them in their offer of purchase to the Greenfield estate. The court also found that “Defendants have at no time refused to give to the plaintiff sufficient or any information as to the details of the business so that he would be enabled to determine the condition thereof and protect his investment therein, but on the contrary the defendants have at all times supplied to the plaintiff all information which is available to the defendants themselves concerning the details of the business.” In this regard the evidence showed that the venture had employed a firm of certified public accountants, which at regular intervals had audited the books, and that copies of such audits had been delivered to plaintiff; that in addition thereto he had made copious notes from the boobs and other memoranda relative to the business; that he was permitted to and did make frequent inspection of the books and records of the venture. The bookkeeper employed by the venture testified that the defendants had instructed her to give to plaintiff any and all information he might ask for relative to the business, and that she had complied therewith. The court further found that the defendants had been given the right, under the agreements of the parties, to the general management, administration and supervision of all activities pertaining to the theatres and to receive as and for their compensation a sum equal to the amounts charged to their subsidiaries for like services. These findings are likewise fully supported by the evidence. The testimony of George Nasser was, in part, as follows: that he and his brothers had been negotiating for the Greenfield theatres before anything was said to them about plaintiff’s wishing to join them in their acquisition; that plaintiff wanted a fifty per cent interest; that “We did not want to give him that at first, but we gave it to him because there was no quarrel about him giving us the management and administration”; that “We told Mr. Zeibak that I would be the manager of-one of the theatres and that James (Nasser) would be the manager of one of the other theatres”; that plaintiff was told the salary of house manager would be $100 a week, which would be the amount James and (the witness) would receive for such services; that plaintiff made no objection or protest whatever when told of this arrangement; that “about a week after we decided on Mr. Zeibak’s participation I took him to the three theatres . . . told him what was necessary in the nature of changes”, but that after the purchase of the property, and on May 27, 1932, when an estimator of costs for repairs to the New Fillmore Theatre came out and brought a sketch with the itemized cost of different changes from the present structure, “We discussed the plan with Mr. Zeibak ...” and that the latter “had taken the position that unless certain demands were met, he would not put up a dime, and had so stated to us” and that the plan was stopped, notwithstanding the fact that the Nassers wanted “to proceed with the proposed repairs and remodelings on both the New Fillmore and New Mission theatres” and told plaintiff that many times. It was also shown that within one week after the defendants had taken over the management of the three theatres plaintiff made the demand that he be installed as manager of one of the theatres at a salary of $100 a week; that the defendants refused this demand because of the fact that plaintiff had had no experience in managing a theatre, and that in their opinion he was not qualified to do so. It was further shown that George and James Nasser were experienced in this branch of the theatre business; that one of them had resigned from a position as manager of a theatre outside San Francisco at a salary of $100 a week to take over the management of the New Fillmore Theatre at the time of its acquisition by the venture, and that the salary paid by the venture for the position of theatre manager was comparable to that paid by other theatre owners for like services. The evidence further showed that the Nasser brothers had had wide experience in the motion picture field for many years prior to the acquisition of the theatres concerned in this action and that their reason for desiring the management of these theatres was because they believed that due to their knowledge and experience in this particular industry they could put these theatres back upon a paying basis, an object which was subsequently accomplished.

Plaintiff also contends that section 2432, Civil Code, was erroneously applied to the facts of this case because, he asserts, that section relates to partnerships only, and not to joint ventures. That section provides as follows:

“ . . . (2) When dissolution is caused in contravention of the partnership agreement the rights of the partners shall be as follows:
“ (a) Each partner who has not caused dissolution wrongfully shall have:
“ ... II. The right, as against each partner who has caused the dissolution wrongfully, to damages for breach of the agreement.
“ (b) The partners who have not caused the dissolution wrongfully, if they all desire to continue the business in the same name, either by themselves or jointly with others, may do so, during the agreed term for the partnership and for that purpose may possess the partnership property; provided, they secure the payment by bond approved by the court, or pay to any partner who has caused the dissolution wrongfully, the value of his interest in the partnership at the dissolution, less any damages recoverable under clause (2aII) of this section, and in like manner indemnify him against all present or future partnership liabilities.
“ (c) A partner who has caused the dissolution wrongfully shall have:
“ ... II. If the business is continued under paragraph (2b) of this section the right as against his copartners and all claiming through them in respect of their interests in the partnership, to have the value of his interest in the partnership, less any damages caused to his copartners by the dissolution, ascertained and paid to him in cash, or the payment ■ secured by bond approved by the court, and to be released from all existing liabilities of the partnership; but in ascertaining the value of the partner’s interest the value of the good will of the business shall not be considered.”

Plaintiff's contention that this section was not intended to apply to joint venture agreements, of the nature of the one in question here, cannot be upheld. The rule is that the rights and liabilities of joint adventurers, as between themselves, are governed by the same principles which apply to a partnership. (Lerner v. Sanderson, 126 Cal. App. 481 [14 Pac. (2d) 564], Ford & McNamara, Inc., v. Wilson, 119 Cal. App. 475 [6 Pac. (2d) 996], Arnold v. Humphreys, 138 Cal. App. 637 [33 Pac. (2d) 67], Elliott v. Murphy Timber Co., 117 Or. 387 [244 Pac. 91, 48 A. L. R 1043], and Keiswetter v. Rubenstein, 235 Mich. 36 [209 N. W. 154, 48 A. L. R 1049].)

Nor is the claim to be upheld that section 2432, Civil Code, is inapplicable to the situation here presented because it contemplates a partnership for a fixed term, whereas the joint venture agreement here involved failed to specify a certain length of time for its duration. Notwithstanding the fact that the trial court found the venture was not entered into for any specific period of time, but was to end, in so far as it was legally possible for it to end, upon the formation of a corporation, this was never done, and the parties voluntarily continued their status as joint venturers under the oral agreements between themselves, and those entered into by them with the Greenfield estate. The following authorities illustrate the rule that where a joint venture or partnership has leased property for the purpose of carrying on a particular business and no fixed period is set for the duration of the partnership, it will be deemed, by implication, to continue during the term of such lease. In the case of Zimmerman v. Harding, 227 U. S. 489 [33 Sup. Ct. 387, 57 L. Ed. 608], two persons entered into a partnership to operate a hotel under a lease. The agreement was never reduced to writing and there was no stipulation as to its duration. After the parties had taken possession difficulties arose between them, which resulted in an attempted dissolution of the partnership by one of the partners. There the court said, “ . . . We agree with the court below that although there was no express stipulation as to the duration of the partnership agreement, it was by implication to continue during the term of the lease of the hotel property.” Also, in the case of Beller v. Murphy, 139 Mo. App. 663 [123 S. W. 1029], wherein certain persons had agreed as partners to conduct a mining business on land leased by them, and the question later arose as to whether it was a partnership for a fixed period or merely a general partnership with no time fixed for its duration, the court said, “The purpose of this partnership was to conduct a mining business upon the land leased, and the partners must have understood that the business was to continue during the life of the lease, and this made it a partnership contract for a definite period, towit, ten years. ’ ’

Plaintiff further contends that, assuming the application of section 2432, Civil Code, to joint ventures, it does not apply here because the venture was one which could have been lawfully dissolved by the “express will” of a member thereof, under section 2425 (b), Civil Code. This section reads as follows: “Dissolution is caused: ... (b) By the express will of any partner when no definite term or particular undertaking is specified, ...” This contention likewise cannot be upheld for the reason that the venture here was not one which could have been lawfully dissolved by the express will of a member thereof. Here there was a definite, and “particular undertaking”, voluntarily assumed by each of the partners, and as hereinabove stated, the term of the venture, at least impliedly, was of similar duration as the term of the leases under which the theatres were operated. In the case of Bates v. McTammany, 10 Cal. (2d) 697 [76 Pac. (2d) 513], this claim was also made. There the court found that the partnership was formed for the purpose of conducting a radio station “so long as the license therefor could be obtained from the federal government”. The defendant contended that the partnership was one at will and that he was entitled to a dissolution under certain sections of the Civil Code, including section 2425 (b). The court there said, “The finding that the partnership was formed for a definite undertaking . . . and so long as the federal license therefor could be procured, is fully supported by the record, and negatives any conclusion which otherwise might be drawn that the partnership was one at will. ’ ’

Plaintiff has advanced other asserted reasons why section 2432, Civil Code, should not be considered applicable to the facts of the instant case—based upon the contention that that section only contemplates a dissolution by a partner and not by decree of court under the provisions of sections 2425 and 2426, Civil Code. Section 2432, Civil Code, provides that, “When dissolution is caused in contravention of the partnership agreement” the rights of the partners shall be as follows: “ . . . A partner who has caused the dissolution wrongfully shall have,” etc. Although the actual dissolution in the instant case was effected by the decree of court, nevertheless such dissolution was caused by the wrongful conduct of plaintiff “in contravention of the partnership agreement”, as is clearly contemplated by the provisions of section 2432, Civil Code. That section provides the rights and remedies of both the offending and nonoffending partners where, as here, a dissolution has been effected because of the wrongful conduct of one of the partners. There is no language to be found in that section which expressly or impliedly precludes its application to the facts of the instant case, where it was found that not only had plaintiff’s conduct been “in contravention of the partnership agreement”, but that the court had decreed the dissolution because of such wrongful conduct.

Defendants and cross-appellants contend that the court erred in fixing the date July 20, 1934, as the date upon which the value of plaintiff’s interest should be determined because of certain language contained in finding number nineteen which indicates, they assert, that the dissolution was caused by plaintiff on December 11, 1932, and hence that his interest must be determined as of that date. This finding is as follows: “ ... by reason of the wilful and persistent failure and refusal on the part of the plaintiff to proceed with the performance of his agreements and understandings with the defendants entered into on and prior to January 11, 1932, and on January 28, 1932, and by reason of the conduct of the plaintiff on or about December 11, 1932, as hereinbefore found, by virtue of which said conduct the said plaintiff caused the wrongful dissolution of the venture in which the plaintiff and the defendants engaged, and by the aforesaid conduct the said plaintiff has been guilty of such conduct as tends to affect prejudicially the carrying on of the business of said venture, and further by reason thereof the court finds that it is not reasonably practicable for the defendants to carry on the business in partnership with the plaintiff, and there being other circumstances as hereinbefore found and as established by the evidence which renders a dissolution between the parties in the aforementioned venture equitable, the court hereby further specifically finds that the defendants in the above entitled action have not caused the dissolution of said venture wrongfully and that the said plaintiff has caused the dissolution of said venture wrongfully”. (Italics ours.) Although the words in this finding, “and by reason of the conduct of the plaintiff on or about December 11, 1932, as hereinbefore found, by virtue of which said conduct the said plaintiff caused the wrongful dissolution of the venture”, considered separately might be said to support defendants' contention, nevertheless, under rules relating to the interpretation of findings, certain language may not be isolated from the entire context, where to do so would place an interpretation upon such finding different from that which would follow from a reading of the finding as a whole. The finding in question here is expressed in the conjunctive and clearly indicates, when read in its entirety, that the trial court meant that the plaintiff, by a course of conduct upon different occasions, prior to December 11, 1932, as well as upon that date, had rendered a dissolution by the court equitable, and not, as defendants contend, that the court considered that by his conduct on December 11, 1932, plaintiff had caused a dissolution ipso facto as of that date. The court stated that it intended no such meaning as is contended for by defendants to be given to this finding, when, in replying to an argument of defendants’ counsel relative to this contention, it made the following remark: “I will say to you very frankly that unless I am convinced that in fixing the date of July 20, that the court is not correct, why of course, I would not want any other proof except the proof which is before me; and my order was made in that respect upon the theory that no matter what these gentlemen did, that the actual dissolution did not take place until the court made its order dissolving the partnership, and that is why I fixed the date as July 20, 1934. Now I may be wrong upon that theory but I included the other date (December 11, 1932) at your (defendants’) instance, . . . because of the fact that it was upon that date that the court construes that the (partnership) contract was actually breached . . . that is, that was the date when Mr. Zeibak notified your clients that he would not go through with the contract after they had notified him that the contract, which finally they might all have agreed upon, that they had agreed to; as I say, it is wholly upon that theory that the court has fixed in its own mind that the valuation of the property should be made as of the date which the court actually dissolved the enterprise, and unless I am wrong in that respect why I think I shall adhere to that date.” Although this finding might well have been more clearly phrased, any apparent ambiguity therein is completely dispelled by the words of the trial court just referred to. Throughout the findings, conclusions of law, and into the final judgment the trial court consistently adhered to the date July 20, 1934, as the date upon which plaintiff’s interest should be ascertained. Furthermore, it may be said that after December 11, 1932, the acts and conduct of the defendants were wholly inconsistent with a recognition upon their part that they considered the venture had been dissolved ipso facto as of that date. Notwithstanding the fact that on one occasion the defendants informed plaintiff that they considered he had breached the partnership agreement by his failure to sign the agreement upon that day, up to the date of trial, the parties continually negotiated, each with the other, looking to a settlement of their differences, and during the entire time, to all intents and purposes they resumed and continued the partnership relation. In the case of Beller v. Murphy, 139 Mo. App. 663 [123 S. W. 1029], the claim was also made that the wrongful conduct of some of the partners in excluding one partner from the business of the firm caused a dissolution of the partnership ipso facto. In negativing this contention the court said, “In the case of Hartman v. Woehr, 18 N. J. Eq. 383, it was said, ‘If part of the capital of an agreed partnership has been paid, accepted, and used, and the business has been commenced in the name of the firm, he is an actual partner until the partnership is legally dissolved, and a mere exclusion of such person by the others from the business of the firm by illegal acts on their part is not a legal dissolution, but is a ground for an application to a court of equity for a dissolution upon his part, and, until such dissolution is had, he is entitled on an accounting, to his share of the profits. ’ ” Also, in the case of Carrey v. Haun, 111 Or. 586 [227 Pac. 315], it was held that a partner who was wrongfully excluded from control of the partnership property, was not entitled to an accounting as of the date of such wrongful exclusion, so as to avoid his share of loss, subsequently occurring, where he then took no steps to dissolve the partnership and obtain an accounting. The court said, “Even if we consider the dissolution of the partnership to have occurred on April 6, 1922, yet it remains in force for the purpose of winding up its affairs, . . . The dissolution, whenever occurring, did not change the interest of either partner in the property of the firm until the final closing up of its affairs.”

Plaintiff also makes the claim that the death of L. G. Dolliver worked a dissolution of the partnership. We cannot concur in this view. Here the parties themselves had by their several agreements and undertakings created a situation wherein the death of Dolliver could not defeat the obligations voluntarily assumed by him and his copartners. In the case of Beller v. Murphy, 139 Mo. App. 663 [123 S. W. 1029], hereinbefore referred to, one of the partners died before the expiration of the term of the lease and it was there contended that his death had dissolved the partnership. The court said: “As a general proposition the death of one partner does dissolve the partnership; but, even in those cases, the dissolution caused by death does not affect existing contracts. (30 Cyc. 620; Hughes v. Gross, 166 Mass. 61 [43 N. E. 1031, 32 L. R A. 620, 55 Am. St. Rep. 375].) Since this partnership had contracted to mine this land and pay royalties for ten years, its contract must be fulfilled.” Here also, as above noted, Dolliver had but a twenty per cent interest in the business, and immediately upon his entry into the venture, he assumed the status of an investor, and took no active part in the affairs of the partnership. In the case of Schenk v. Lewis, 125 S. C. 228 [118 S. E. 631], the court, in considering the effect of the death of a partner stated that “While it is true, as a general rule, that the death of a partner effects an immediate dissolution of the partnership, it is not always so. If there was any special skill or capacity in the deceased partner, the partnership would, of course, cease to exist from the time of his death. But if the business was for the purpose of keeping the dead partner’s capital invested in the partnership, there is no reason why his death would necessarily terminate the relation. (2 Story Eq. Jur. [14th ed.], see. 916.) In this particular case the small interest of Lewis in the partnership does not indicate any special skill or capacity; and the course of dealing suggests the purpose of keeping his capital invested, in which event the Lewis estate would be entitled to his share in the profits of the continued business. ’ ’ (See, also, 47 C. J., p. 1112.)

Plaintiff also contends that the application of section 2432 Civil Code to the facts of this case, under which section he was denied one-half the value of the good will, was a taking of his property without due process of law,—and further that this section provides for “double penalties” in making provision for the assessment of damages against an offending partner in addition to denying him any portion of the good will of the business. This view disregards the fact that the code section is purely remedial in that it provides for a mode of procedure which plaintiff must be deemed to have consented to when he entered into his undertakings with defendants. Plaintiff was afforded the right to have his cause tried and determined under the same rules of procedure that are applied to similar actions brought pursuant to the Uniform Partnership Law (Stats. 1929, p. 1896). This right having been accorded him, when considered together with the fact that he invoked the process of the law himself, precludes him now from asserting that his property was taken from him without due process of law, under the provisions of the Uniform Partnership Act, as adopted by this state. In the case of Gray v. Hall, 203 Cal. 306 [265 Pac. 246], it was said, “It is the right of a litigant to have his cause tried and determined under the same rules of procedure that are applied to other similar eases, and when this is afforded to him he has no ground to complain that due process of law is not being observed.” (See, also, 5 Cal. Jur., p. 864.) In the case of Dow v. Beals, 149 Misc. 631 [268 N. Y. Supp. 425], which was an action for dissolution of a partnership, and which involved the construction of a section in all material respects similar to that of section 2432 Civil Code, in discussing the constitutionality of this section the court said: “Such power to dispense with a judicial sale is given by the provisions of the partnership law, . . . The portions of these sections referring to the procedure to be adopted in this action are clearly remedial in character. They do not impair any contract rights, and they fix only the method of procedure. ... In so fixing value the good will of the business should not be considered. ’ ’

Defendants and cross-appellants also contend that the trial court erred in not awarding them damages as prayed for. The trial court found that defendants had failed to show that they had suffered any damages by reason of plaintiff’s conduct. The evidence fully supports this finding.

The finding of the trial court with regard to the appraisement is as follows: “The court finds that the defendants have, in pursuance of the aforementioned interlocutory order . . . rendered to the above entitled court a full and complete accounting of all transactions of the said joint venture, including all profits arising therefrom from the beginning of said venture up to and including the dissolution thereof on July 20, 1934.” Although both parties to the action have challenged the fairness of the amount found to be the interest of plaintiff on the date of dissolution each claiming in accordance with his respective views, that the amount of certain items of expenditure should have been added to or deducted from the amount found to be the going concern value,—the evidence discloses the fact that a full and fair accounting was had between the parties. The value of the assets as entered upon the books of the venture was shown to have been the basis upon which the value of plaintiff’s interest was computed. All three of the appraisers agreed upon a certain sum as representing the value of plaintiff’s one-half interest, but two of the appraisers submitted concurring reports in which each arrived at entirely different figures with respect to the “going concern” and “good will” value, respectively. The question of the valuation of plaintiff’s interest was a matter for the trial court, and upon the divergent views thus submitted by the appraisers, the finding of the trial court may not be disturbed. (Freeman v. Donohoe, 65 Cal. App. 65 [223 Pac. 431]; Ratto v. Ratto, 206 Cal. 661 [275 Pac. 784]; McAtee v. McAtee, 105 Cal. App. 555 [288 Pac. 114].)

Defendants and cross-appellants were awarded costs in the action proper, but upon the appraisal proceedings each party was charged with the payment of one-half the appraisers’ fee. Defendants contend it was error for the court to have taxed them for a portion of this fee. This was a matter within the discretion of the trial court, and the action of such tribunal will not be disturbed, where as here, there is no showing of an abuse of discretion.

Judgment affirmed. Motion to dismiss appeal denied.

Rehearing denied.