Rehearing Denied Sept. 26, 1961.
[89 Ariz. 362] Charles Christakis and Douglas O. Peterson, Phoenix, for appellant.
John M. Levy and William C. Fields, Phoenix, for appellees; Emmett R. Feighner, Phoenix, of counsel.
FRANCIS J. DONOFRIO, Superior Court Judge.
This is an action by Eugene Puntel, hereinafter called plaintiff, against Stephen Kirtides and Olympia Kirtides, his wife, hereinafter called defendants. The case was tried to the court sitting with a jury, and at the close of plaintiff's evidence defendants moved for an instructed verdict on each count of the complaint. The court below granted the motion and plaintiff has appealed.
The plaintiff has several assignments of error which may be summarized into three categories:
1. That the court erred in directing a verdict for the reason that a prima facie case was established in that there was enough evidence to take the case to the jury on the issue as to whether there was a partnership between the parties, and that a prima facie case was made on the count alleging actionable fraud against the defendants and that there was enough evidence to take the case to the jury on this issue.
2. That the court erred in denying plaintiff's motion to amend the complaint for money had and received and for breach of contract and for constructive trust.
3. That the court erred in denying plaintiff's motion to reopen his case, and erred in not admitting plaintiff's Exhibit I in evidence.
Under these circumstances, first it is necessary that we examine the evidence, for it there is evidence in the record from which a jury could reasonably have found in favor of plaintiff on any of the causes of action of the complaint it was error to direct a verdict. Golfinos v. Southern Pacific Company, 86 Ariz. 315, 318, 345 P.2d 780, 781.
The trial proceeded on an amended complaint alleging two causes of action. The first cause of action alleged a partnership and prayed for an accounting and a distribution of the partnership business. The second cause of action was based on fraud concerning the same matter and asked for damages. The defendants denied both the allegations of partnership and fraud.
The facts, taken as strongly in favor of plaintiff's case as they may be from the evidence, show the following: The plaintiff, an unmarried man in his seventies, was illiterate, and unable to speak English very well. He met the defendants, a young married couple, on or about the 22nd day of March, 1954. At this time defendants employed plaintiff as a dishwasher in their restaurant located on Madison Street in [89 Ariz. 363] Phoenix. Both parties spoke Greek and carried on much of their conversations in the Greek language.
The plaintiff worked for defendants as a dishwasher for approximately 10 months, receiving a salary of $30 a week which he claims to have given back to defendants. Soon after going to work he claims that he gave them approximately $279, and thereafter the sum of $100 which the plaintiff borrowed from his cousin in California. There were other items such as social security checks, salaries and the obtaining of a $1,000 loan from a local bank, together with work in the construction of a diner trailer which plaintiff claims to have given the defendants. The defendants admit borrowing some money from plaintiff, but the record is silent as to whether any of it was ever paid back.
The theory of plaintiff's first cause of action was that the plaintiff and defendants orally entered into a partnership agreement, in March, 1954, whereby both agreed that they would together build a diner and thereafter open it for business, each to contribute his share of services. The theory of the second cause of action was that when defendants entered into this oral agreement they never intended to have plaintiff as a partner but with intent to defraud, made representations to enter into a partnership, which representations were false and material and made solely to obtain plaintiff's monies.
We think the first and vital question is: Is there any evidence of partnership? There are many definitions of a partnership but perhaps none are more comprehensive and precise than the often quoted definition of Chancellor Kent:
'A Contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear ...