(From a photocopy of trial transcript courtesy of Fred Goodwin.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT 34 HON. EMIL GUMPERT, JUDGE
No. 721111
KARL FARR, LLOYD PERRYMAN, GEORGE FISHER, LLOYD T. DOSS, DALE WARREN
Plaintiffs and Cross-Defendants,
Vs.
HUGH FARR,
Defendant and Cross-Complainant
REPORTER’S TRANSCRIPT
Tuesday, December 15, 1959
APPEARANCES:
For Plaintiffs: MAX E. GILMORE
For Defendant: ROSENTHAL, ROMANIK & NISALL
By: GERALD L. ROMANIK
GRACE A. ROGERS, C. S. R.
Official Reporter
INDEX
PLAINTIFFS’ WITNESS DIRECT CROSS
FARR, Hugh (2055 CCP) 2 14
DEFENDANT’S WITNESS
FARR, Lynn 26 31
REBUTTAL WITNESS
PERRYMAN, Lloyd 33 36
EXHIBITS
DEFENDANT’S IN EVIDENCE
A – Group of Business Records 30
ORAL OPINION OF THE COURT PAGE
38
Page 2
Los Angeles, California, Tuesday, December 15, 1959 9:30 AM
THE COURT: Farr versus Farr
MR. GILMORE: Ready, your Honor.
MR. ROMANIK: Ready for the defendant, your Honor.
MR. GILMORE: I WILL CALL Mr. Hugh Farr under 2055.
HUGH FARR, the defendant herein, called as a witness on behalf of the plaintiffs under the provisions of Section 2055 of the Code of Civil Procedure, having been previously duly sworn, was examined and testified as follows:
THE CLERK: State your name, please, again for the record.
THE WITNESS: Hugh Farr.
DIRECT EXAMINATION BY MR. GILMORE:
Q Mr. Farr, as I understand it, it is your position in this lawsuit you are the sole owner of the name “Sons of the Pioneers”?
A Yes, sir, I have always thought that; yes.
Q It is your position in this lawsuit that your brother Karl has simply been an employee of this group since he joined in about 1935?
Page 3
A Yes.
Q And it is your position that Mr. Fisher has been a member of the group since he joined in 1936[1]?
A Yes.
Q And it is your position that Mr. Doss has been a member of the group since he joined in 1939[2]?
A Yes.
Q The old original group of “Sons of the Pioneers” were Roy Rogers, Tim Spencer and Mr. Robert Nolan and yourself; is that correct?
A Yes.
Q It is your position that those original four agreed regardless of who joined the group later on the name remained with the original four or whoever of the original four remained in the group; is that correct?
A Yes, but it has been so long ago they have forgotten. You forget a lot in 27 years.
Q In February of 1939[3] you were the only member of the original group still with the “Sons of the Pioneers”; is that correct?
A Yes, sir.
Q And you are the only original member of the group who has been with the “Sons of the Pioneers” since
Page 4
Tim Spencer left in about 1952; is that correct?
A Yes.
Q In about 1954 your then wife, Rosita Estelle Farr, secured a divorce from you in this court; is that correct?
A No, I got one from her.
Q About that time?
A Yes.
Q In that proceeding you filed an affidavit in which you purported to set forth all of your separate community assets; is that correct?
A All except the name of the “Sons of the Pioneers”.
Q But in your affidavit that you made in that proceeding –
MR. ROMANIK: Do you have that affidavit with you, counsel?
MR. GILMORE: No, I do not.
Q --you purported to set forth all of your assets, both community and separate, in that affidavit; is that correct?
A Yes.
Page 5
Q But you did not include the name “Sons of the Pioneers” in that list of property?
A No, because that was my livelihood.
MR. GILMORE: May it please the Court, may counsel approach the bench?
THE COURT: If you wish to say something without the witness hearing it, you may. However, there is no jury here, of course.
MR. GILMORE: It need not be on the record.
(Conference at the bench between both counsel and the Court, without the reporter.)
THE COURT: We discussed informally a stipulation, but this is no indication of the feeling of the Court, because the Court, of course, does not form or express any opinion on a case until it is finally submitted to the Court, the same as with a jury. But as I understood counsel in chambers, there was a further stipulation that was not put on the record, that if the court should determine that the firm name was a partnership asset it would be sold and the proceeds divided equally between the parties to this litigation.
MR. ROMANIK: So stipulated, your Honor.
MR. GILMORE: So stipulated.
THE COURT: That is to say, one-sixth to each; is that correct, gentlemen?
MR. ROMANIK: So stipulated.
Page 6
MR. GILMORE: So stipulated.
THE COURT: All right. You may proceed.
Q BY MR GILMORE: Mr. Farr, on or about 1954 you filed a petition in bankruptcy in the United States District Court here in Los Angeles?
A Yes, sir.
Q In connection with that proceeding you filed under oath schedules which purport to set forth all of your property of every nature and description; isn’t that true?
A Yes, sir.
Q In those schedules is it not a fact you did not include as one of your assets the trade name “Sons of the Pioneers”?
A That’s right.
THE COURT: At the time you swore to those schedules in bankruptcy did you consider –
THE WITNESS: My lawyer –
THE COURT: Just listen to the question, please. Did you consider the name “Sons of the Pioneers” an asset of any value, or did you consider it an asset of no value and for that reason leave it out of your schedules?
THE WITNESS: Well, it was of value to me, but I couldn’t see how the name “Sons of the Pioneers” was of any value to the bankruptcy – I don’t know what they could have done with it. Not only that, but my lawyer never suggested it. He told me everything to do, and the name of the “Sons
Page 7
of the Pioneers” was never mentioned.
THE COURT: You did not mention it?
THE WITNESS: Well, he knew who I was and I never even thought to mention it.
THE COURT: But in any event, you did not list it?
THE WITNESS: No, sir.
THE COURT: So whether it was listed or not, wouldn’t it pass as an asset, Mr. Romanik; if it had any value under the law and under the federal states, wouldn’t it pass as an asset to the creditors, whether it is listed or not?
MR. ROMANIK: I think your Honor has correctly stated the law, but I think there is a provision that if one party goes through bankruptcy the estate is managed by the remaining and solvent partners and not by the trustee in bankruptcy, although as your Honor says, his interest in the partnership would have passed.
THE COURT: If he went through bankruptcy and all of his assets were listed there, wouldn’t his asset have passed to the bankrupt estate and be in the other court now?
MR. ROMANIK: I can only render an offhand opinion, your Honor. I think so.
THE COURT: Your stipulation would cover the fact – assuming that the asset or most of the value of the asset remained in the plaintiffs or in the partnership, everyone has stipulated now that the interest would be divided
Page 8
one-sixth to each.
MR. ROMANIK: However, it could be held, your Honor, that the name would be in effect a tool of his trade, in which event the name would have been exempt.
THE COURT: He did not claim any exemption of that, did he?
MR. ROMANIK: But had the name been brought into the bankruptcy proceeding I think it would have been exempt as a tool of the trade.
THE COURT: This is a novel position.
MR. ROMANIK: I think your Honor has put me in a position where I have to become novel.
THE COURT: All right. Proceed.
Q BY MR. GILMORE: Did you copyright the name “Sons of the Pioneers”, sir?
A Yes, sir.
Q You made your application for that copyright in the United States Patent Office on March 2nd, 1959; is that correct?
A Yes, sir.
Q That was after you had separated from the rest of the group known as the “Sons of the Pioneers”; isn’t that true?
A No, sir, that was before that.
THE COURT: That was while you were still operating together?
Page 9
THE WITNESS: That’s right.
Q BY MR. GILMORE: Were you still operating with the “Sons of the Pioneers” on March 2nd, 1959?
A Well, I thought we were until my brother came to me and told me he didn’t want to work with me any more.
Q Isn’t it a fact that the last time you worked with the “Sons of the Pioneers” was down in Florida in February 1959?
A That’s right.
Q And after you completed your assignment of your work there in Florida in February 1959 you went to Washington, and on March 2nd, 1959, you filed a copyright; isn’t that right?
A Well, I thought I went from Madison Square Garden to Washington, D. C.
THE COURT: Mr. Farr, at the time you filed this application for copyright you believed you were still one of the members of the group?
THE WITNESS: Yes, I knew I was.
THE COURT: Did you consider at that time that the group was operating as a partnership?
THE WITNESS: As a partnership?
THE COURT: Yes.
THE WITNESS: No, sir.
THE COURT: What were they operating as?
THE WITNESS: Well, like I said, all the way through
Page 10
I felt that I fell heir to the name.
THE COURT: Well, they were not working for you, were they?
THE WITNESS: Well, more or less.
THE COURT: Of course, if the relationship of partnership existed at that time, or even if this defendant believed so, he would be in effect a trustee for the other partners, and if he proceeded to copyright a name that belonged to the partnership he would be acting on behalf of the partnership and the partnership would be entitled to the benefit of any copyright.
THE WITNESS: It was after Madison Square Garden.
Q BY MR. GILMORE: Isn’t it a fact that when you made this application for a copyright of the name “Sons of the Pioneers” you were doing it to protect not only yourself but all the other members of the group?
A No, just to protect the name, to protect everything that was connected – You might say to protect everybody, because other groups had been trying to use it.
MR. GILMORE: Is the original deposition of Mr. Hugh Farr on file?
THE COURT: I do not know.
(Discussion in re the filing of the original deposition.)
THE COURT: There is no objection to utilizing a copy, I am sure.
Page 11
MR. ROMANIK: None, your Honor.
Q BY MR. GILMORE: I call your attention to page 62 of the deposition of Mr. Hugh Farr. Sir, was your deposition taken at 6253 Hollywood Boulevard Friday, October 16, 1959?
A I don’t exactly remember the date, but somewhere along there, sir.
MR. GILMORE: Pardon me, Mr. Romanik. I want to start at page 60, line 16.
Q I hand you, sir, what purports to be a copy of your deposition and ask you to read to yourself beginning page 60, line 16, down to page 63, line 24, and when you have finished reading it, please inform me of that fact.
A (After reading) Well, I know I went from Madison Square Garden –
Q First, have you read that?
A Yes.
Q Were the questions that were propounded to you at that time –
THE COURT: Were those questions asked and those answers given as appear in the deposition you just read?
THE WITNESS: Yes, sir
MR. GILMORE: May I read that portion, your Honor, into the record?
THE COURT: Yes. From what page to what page?
MR. GILMORE: Page 60, line 15, to page 63, line 24.
Page 12
THE COURT: Did the witness read those pages?
THE WITNESS: Yes, sir.
THE COURT: Very well.
MR. GILMORE: (Reading from deposition)
“Q Did you copyright the name “Sons of the Pioneers”?
“A I did.
“Q When did you do that?
“A The latter part of February.
“Q What year?
“A 1959.
“Q The latter part of February 1959?
“A I think that is when it was. I got the exact date at home.
“Q It wasn’t after you had appeared in the Madison Square Garden show?
“A Yes.
“Q 1958?
“A 1958?
“Q Yes.
“A No, I don’t think so. I can tell you that date. I can call and get it at my home.
“MR. GILMORE: May we adjourn now and maybe you can bring it in the afternoon.
“MR. ROMANIK: No, I don’t think that will be necessary. Are you seeking the date the
Page 13
application was filed with the United States Patent Office? That was March 2nd, 1959.
“MR. GILMORE: March 2nd, 1959.
“Q Who were the attorneys who made the application for you?
“MR. ROMANIK: For the record, they are Fisher, Christen & Goodson, Washington, D. C.
“MR. GILMORE: Did you go to Washington in connection with this matter?
“THE WITNESS: Yes, sir.
“Q BY MR. GILMORE: Was a copyright issued to you?
“A What was that?
“Q Was a copyright issued to you?
“A Just to me?
“Q Issued to you.
“A Yes.
“Q In the name of Hugh Farr?
“A Yes.
“Q Did you disclose that to your brother, that you were making this application?
“A No.
“Q Did you disclose it to any other members of the group?
“A I did not.
“MR. ROMANIK: By disclosure do you mean
Page 14
personal disclosure?
“MR. GILMORE: Yes.
“Q In other words, did you tell them you were going to do that?
“A No.
“Q What were the circumstances that made you take those steps?
“A Because there had been too many people trying to use it and there has been groups that go out and do television shows without him and me. They have done a lot without me.
“Q Meaning ‘him’?
“A Without him and me.
“Q When you say ‘him’ you mean your brother?
“A Yes. And to protect the name and to protect all of us I went and had it registered.”
MR. GILMORE: No further questions.
THE COURT: Any questions?
CROSS-EXAMINATION
BY MR. ROMANIK:
Q Mr. Farr, during the period of time the “Sons of the Pioneers” and you were associated did you negotiate a number of contracts for them?
A Yes, sir.
Page 15
Q Can you tell me approximately how many?
A Oh, all down through the years since Tim Spencer, off and on – There was three of us, and whoever they would call up – A lot of people didn’t know who to call. They would remember the name Lloyd Perryman mostly, because he was the master of ceremonies, and they would call him or they would call Karl or they would call myself.
Q Is it your understanding that so far as this copyright of the name is concerned that the final letters will be issued the 16th of this month?
A Yes.
Q Did you receive that information from me?
A No, I don’t think so.
Q Who did you receive it from ?
A I received it from Mr. Christen.
Q That is the attorney in Washington, D. C.?
A Yes.
Q Was it your understanding, sir, throughout these years that the name “Sons of the Pioneers” was to remain with the original four who were in the group?
A Yes, that was agreed on and was talked over from the very, very beginning.
Q During the year 1957 were you operating as a corporation?
A Yes, for a short while.
Q Who handled the books for that corporation?
Page 16
A My wife handled the books for the corporation.
Q I show you a number of columns and sheets here and a Spiral bound folder. To your knowledge are these the books your wife kept?
A Yes, sir.
Q During that time, do you know of your own knowledge who paid the employers’ withholding tax?
A Karl and I.
Q Did that cause you to essentially earn less?
A Yes, quite a little less, a difference of three hundred and seventy something dollars, and $469, or something like that that the other boys got.
Q Because you and Karl made the employers’ contribution?
A That’s right.
Q Was there any discussion among the members of the group consisting of you and your brother and Messrs. Perryman, Fisher and Doss as to the continuation under the name “Sons of the Pioneers” or any other name?
A I don’t understand your question.
Q Did Mr. Lloyd Perryman ever tell you he would just as soon go out and work under any other name?
A Yes, sir. They said they should go out and work as the “Six Little Fat Boys,” and that was because they thought the name had lost its prestige and drawing power, and they wanted to go out under the name of the “Six
Page 17
Little Fat Men” or “Six Little Fat Boys”, I forget which.
Q Will you tell the Court under what circumstances you became dissatisfied with Mr. Lloyd Perryman, Mr. Lloyd Doss, Mr. Tim Spencer and –
MR. GILMORE: I understood we were not going into that.
MR. ROMANIK: I am sorry. I withdraw the question. I have nothing further.
THE COURT: Mr. Farr, your brother Karl came in with you in about 1933?
THE WITNESS: No, it was the latter part of 1935, I would say.
THE COURT: Let us get the sequence of events here. The original four was yourself, Roy Rogers, Tim Spencer and Bob Nolan; is that right?
THE WITNESS: Yes, sir.
THE COURT: What year was it that you formed this group and operated under the name “Sons of the Pioneers”?
THE WITNESS: That was around the latter part of 1933.
THE COURT: At that time you were earning a rather nominal sum for your services; isn’t that correct – that is as compared with what you earned in recent years?
THE WITNESS: That’s right, but there was a mistake
Page 18
here and the different boys didn’t remember it, but I happen to remember it. It was 45 instead of 25 we were making, and we give Karl Farr about $8 a week out of our pocket.
THE COURT: Has the income of the group, of the individual members of the group, increased year by year?
THE WITNESS: Some. The last job I worked, though, was done quite a little over what I have made.
THE COURT: But over the years the reputation of the organization, I assume, nationally expanded and it became greater than in the earlier years?
THE WITNESS: Yes.
THE COURT: And therefore your income increased?
THE WITNESS: It increased, but in the last few years it has decreased, too.
THE COURT: About what year did Roy Rogers go out, according to your recollection?
THE WITNESS: About what time did he leave the group?
THE COURT: Yes.
THE WITNESS: About 1937, or somewhere in there.
THE COURT: And about when did Tim Spencer leave, according to your recollection?
THE WITNESS: Well, let me see, now. Tim Spencer left – I don’t know exactly, but he left – Roy left first and then Bob Nolan left –
THE COURT: When was it Bob Nolan left?
Page 19
THE WITNESS: He left about 14 or 15 years ago, about 15 years ago, I would say.
THE COURT: About 1944?
THE WITNESS: 1944 or ’45, somewhere around there.
THE COURT: When did Tim Spencer leave?
THE WITNESS: Well, he left sometime after that. I don’t know exactly.
THE COURT: Approximately.
THE WITNESS: Well, he hasn’t been in the group for nine or ten years.
THE COURT: That would have been around 1948 or ’49 then?
THE WITNESS: Somewhere in there.
THE COURT: Or 1949 or ’50.
THE WITNESS: That would be close. It is hard to remember all of these years and dates.
THE COURT: Let me have your recollection of the dates when these other individuals came in, whether they are still there or not. Who was the next one after the formation of the group in the latter part of 1933 – who was the first individual who came into the group?
THE WITNESS: After the first four it was my brother, Karl Farr.
THE COURT: When did he come in?
THE WITNESS: Around the latter part of 1935.
THE COURT: And the next one?
Page 20
THE WITNESS: The next one then I think was Pat Brady.
THE COURT: When did he come in?
THE WITNESS: He come in around 1938[4], or somewhere in there.
THE COURT: When did he leave?
THE WITNESS: He left about 14 years ago, I would say. We let Roy have him as his comedian.
THE COURT: He left about 1945[5] then, would you say?
THE WITNESS: Around in there.
THE COURT: Who was the next one that came in?
THE WITNESS: Well, that made the group, that made the six, and nobody else come in until some of them started to leave.
THE COURT: Well, just tell me as best you can.
THE WITNESS: Bob Nolan left.
THE COURT: He left in about 1945?
THE WITNESS: Well, let me see. It was Pat Brady, and he has been gone about 15 years. I don’t think Bob Nolan has been gone that long. He has been gone only about 10 or 11 years. It was Lloyd Doss who came in and took his place, and we had a Lloyd in our group already, so we called him Tommy Doss.
THE COURT: When did he come in?
THE WITNESS: He come in about 10 years ago, about 1948 or ’49, somewhere in there.
THE COURT: All right.
Page 21
THE WITNESS: And then when Tim left, Ken Curtis come in[6]. And after Ken Curtis left –
THE COURT: When did Curtis come in?
THE WITNESS: Ken Curtis come in and he stayed for about four years, something like that, and then when he left –
THE COURT: When did Curtis come in?
THE WITNESS: Let me see. Kenny come in about the time Bob Nolan left.
THE COURT: That would be about 1948 or ‘49 then?
THE WITNESS: Yes.
THE COURT: And he stayed about four years?
THE WITNESS: He stayed about four years, that’s right
THE COURT: Then he left around 1952 or ’53?
THE WITNESS: Somewhere in there.
THE COURT: Who was next?
THE WITNESS: When he left, Dale Warren came in[7]. that has been about eight years ago.
THE COURT: About 1951?
THE WITNESS: Somewhere in there.
THE COURT: All right.
THE WITNESS: Well, that made the group. That made the group up until –
THE COURT: You have not accounted for Fisher.
THE WITNESS: Well, Fisher had been in and out of the
Page 22
group for the last 17 or 18 years.
THE COURT: When did he come in originally?
THE WITNESS: Recently?
THE COURT: No, originally.
THE WITNESS: I think he came in first to take Lloyd Perryman’s place while he was in the Service. He was in Burma, India, and Fisher come in and took his place for about three and a half years, I would say.
THE COURT: Was that in about 1941, ’42, or ’43?
THE WITNESS: Yes, somewhere in there, I would say.
THE COURT: Then he was in and out?
THE WITNESS: Yes.
THE COURT: What about Perryman[8]?
THE WITNESS: Well, when he come back then he took his place back again.
THE COURT: When did Perryman come in originally?
THE WITNESS: The first time?
THE COURT: Yes.
THE WITNESS: He come in the first time about 1936.
THE COURT: In the years 1933 and ’34 you were working for the radio station, were you not?
THE WITNESS: Yes, sir.
THE COURT: Did you continue to work regularly for the radio station for some period of time?
THE WITNESS: Well, for quite a while.
THE COURT: For how long?
Page 23
THE WITNESS: Oh, I would say we worked there 18 months or two years.
THE COURT: What was the next job you got after the radio station job?
THE WITNESS: Well, the next job after we got there – We went out on tour, and after we got out of the tour we went back to the Texas Centennial.
THE COURT: Had your brother Karl joined the group while you were out on the tour?
THE WITNESS: Yes.
THE COURT: While you were working for the radio station what was the maximum amount you received as earnings?
THE WITNESS: Well, that was during the depression, you will remember, and any kind of a job was good, and we would be there under two different names before my brother got there – “Jack and His Texas Outlaws” and the “Goldstar Rangers,” and with “Jack and His Texas Outlaws” we wasn’t making over 10 or 15 dollars.
THE COURT: What was the most you were making at the time you went out on the road?
THE WITNESS: We was making $45 a week when my brother joined the group.
THE COURT: What was the maximum you made after your brother joined the group?
THE WITNESS: Every job we took was at a different price.
Page 24
THE COURT: Did it continue to go up over the years?
THE WITNESS: It went up for a while.
THE COURT: For how many years would you say the reputation of the organization grew and expanded and became better and better known?
THE WITNESS: Oh, I would say it reached its peak in about 15 or 16 years.
THE COURT: When you reached that peak approximately what was your maximum income?
THE WITNESS: Well, we made $5,000 a week quite a few times, and we have made a little more and we made less.
THE COURT: That $5,000 was divided between how many?
THE WITNESS: It was divided between the six of us.
THE COURT: So you were each making something in excess of $800 a week?
THE WITNESS: Yes.
THE COURT: To what do you a attribute that increase in the amount of earnings, the expanded reputation?
THE WITNESS: The hard work from the very beginning, and the coaching of the new members that came in. We rehearsed nine hours a day for nine months in my room, and we had one job and we made five or six dollars a night one night a week, and that was what we lived on. We had a thousand numbers memorized. We wouldn’t take a job until we were ready for it. None of these boys was in on the tough part of it, they just come in on the gravy.
Page 25
THE COURT: For how long had you used the name “Sons of the Pioneers” before Karl came in?
THE WITNESS: About three and a half – four years.
THE COURT: What? I’m just talking about the name “Sons of the Pioneers” now.
THE WITNESS: Well, I would say about three years.
THE COURT: You started using the name “Sons of the Pioneers” in what year? I am not talking about any other names now.
THE WITNESS: Well, I think about 1934 it was we started using it.
THE COURT: What part of the year 1934, the latter part or middle or what?
THE WITNESS: Well, I would say the first part of ’34.
THE COURT: And Karl came in during the first part of 1934 or the latter part of ‘34?
THE WITNESS: No, he come in about the middle of ’35.
THE COURT: Then up to the time Karl came in you had been using the name for something less than a year and a half, hadn’t you?
THE WITNESS: I don’t exactly remember, but I thought we had used it longer than that, that we used the name “Sons of the Pioneers” before he came in.
THE COURT: I have no other questions. You may step down.
Page 26
MR. ROMANIK: This obviated the need for recalling him on direct testimony, your Honor.
THE COURT: You may step down.
MR. GILMORE: The plaintiff rests.
MR. ROMANIK: Mrs. Farr.
LYNN FARR, a witness called on behalf of the defendant, having been first duly sworn, was examined and testified as follows:
THE CLERK: Be seated and state your full name, please.
THE WITNESS: Lynn Farr.
DIRECT EXAMINATION BY MR. ROMANIK:
Q You are the wife of Mr. Hugh Farr; is that correct?
A Yes, sir.
Q Were you for a period of time in 1957 the bookkeeper for the “Sons of the Pioneers”, a corporation?
A Yes, sir.
MR. ROMANIK: Do you want to look these over, counsel (indicating documents)?
MR. GILMORE: Yes, but I can’t look them over while you are questioning the witness. I might state that at the time I took the deposition of Mr. Hugh Farr it was taken
Page 27
pursuant to a subpoena duces tecum under which he was required to produce all the records pertaining to the “Sons of the Pioneers”, but these were not produced at that time so I have had no opportunity to peruse them until now.
MR. ROMANIK: If it please the Court, counsel will recall the little colloquy regarding those columnar pads and they did appear at the deposition and these are the pads to which I refer.
THE COURT: There is nothing before the Court.
Q BY MR. ROMANIK: Mrs. Farr, I have here a Spiral bound folder. Will you tell us what this is?
A It is the records of the “Sons of the Pioneers, Incorporated,” the last corporation, drawn up by the “Sons of the Pioneers”.
Q Did you keep these records?
A Yes.
Q Are these records of their financial transactions?
A Yes.
Q What are these columnar pads?
A I started it out during the year. I brought the balance forward from here to here (indicating), and it wasn’t right this way because it is more difficult, and this is a complete record (indicating).
Page 28
Q In other words, the columnar pads represent a continuation of the Spiral bound folder?
A Yes, sir.
Q I see. Throughout these records were employers’ contributions withheld from all the wages paid?
A There were employers’ contributions paid just by Karl and Hugh Farr. The others refused to pay it. They were going to quit if they had to pay it.
Q So who paid the employers’ contributions?
A Hugh and Karl Farr, and that shows here (indicating).
Q Will you show me where it shows it?
A It is up here. You see, this is their total deductions –
Q You are referring now to the fifth page of the columnar sheets, and you are indicating a column entitled “Total Deductions”?
A Well, I made out a page for each of them and showed the total deductions and where they worked and the dates and the employer tax on each job.
Q but the employer tax was deducted only from Karl Farr and Hugh Farr?
A Yes.
THE COURT: Mrs. Farr, you said the others refused to pay. By the others do you mean Perryman, Fisher, Doss and Warren?
Page 29
THE WITNESS: That’s right, sir.
THE COURT: Did you hear them say they wouldn’t pay?
THE WITNESS: Well, may I explain the situation?
THE COURT: Yes, certainly.
THE WITNESS: They had a meeting over at the house. They came over to the house and we explained the situation to them.
THE COURT: Who was there?
THE WITNESS: All of us.
THE COURT: All of you?
THE WITNESS: Yes, sir.
THE COURT: Where did that meeting take place?
THE WITNESS: That was when the corporation was first drawn up. When they started going out – before March 22nd.
THE COURT: Before March 22nd of what year?
THE WITNESS: 1957
THE COURT: There was a meeting then in your home?
THE WITNESS: Yes, sir.
THE COURT: Tell us what was said and by whom.
THE WITNESS: Well, I tried to explain the situation of the corporation to them and that there would have to be a certain amount in the corporation to enable it to manipulate, and so I explained to them the setup –
THE COURT: Well, what did you tell them?
THE WITNESS: Well, I told them there was an employer tax and that their deductions and their expenses would be
Page 30
taken out, and all the expense of the corporation, like the employer tax that goes out of the total on the gross, and they refused to pay it.
THE COURT: Well, who said what?
THE WITNESS: Well, I can’t remember just who said what, but they felt that Karl and Hugh had gone out and had this corporation drawn up unbeknown to them, and they didn’t want any stock in it or to contribute to any employers’ tax, but they wanted to receive equal pay with the other members of the group.
THE COURT: Did they say they were not employees?
THE WITNESS: No, I don’t recall they said that, sir.
THE COURT: Didn’t they say they didn’t want to work for a corporation?
THE WITNESS: No, they didn’t say they didn’t want to work for a corporation. They just said they didn’t want to buy any stock in it, and all they wanted to do was to receive an equal share of the gross amount.
THE COURT: Who offered them stock?
THE WITNESS: Well, Karl and Hugh both asked them if they wanted to buy some stock in it.
MR. ROMANIK: May we offer these into evidence?
THE COURT: Received as Defendant’s Exhibit A.
THE WITNESS: The reason that the organization became dormant is because I talked to the man who drew up this corporation, Mr. –
Page 31
MR. GILMORE: I object to that as hearsay.
THE COURT: Yes, it would be hearsay.
MR. ROMANIK: That is all, Mrs. Farr.
CROSS-EXAMINATION BY MR. GILMORE:
Q Referring to these yellow sheets—
A This is the second quarter.
Q Well, the first one –
A This is the second quarter balance forward.
Q Just a minute.
A I am sorry.
Q The first one marked “Second Quarter”, did that refer to the second quarter of 1957?
A Yes.
Q I notice here that under the heading Dale Henry Warren and under the column labeled “Gross Amount,” the gross amount assigned to him is $1,705.26; is that correct?
A Yes.
Q And the same amount for the quarter and for the year has been assigned to Mr. George Fisher?
A Yes.
Q And to Mr. Lloyd Perryman?
A Yes.
Q And the same amount has been assigned to Mr. Lloyd Doss?
Page 32
A Yes.
Q And the same amount to Karl Farr?
A Yes.
Q And the same with reference to Mr. Thomas Hubert Farr?
A Yes.
Q Where on this document does it show that Mr. Hubert Farr and Mr. Karl Farr paid the withholding tax for the entire group?
A Up here where I show the total deductions, employer tax on Hugh Farr and Thomas Farr is here, see, I write it very small. And on the others, of course, that isn’t there. And, of course, the last, it was less than five months, is all.
Q The “Sons of the Pioneers” operated under this corporation for how long, Mrs. Farr?
A Well, let me see. From March 22nd – at first – the first job was April 19, 1957, and it went through August 8, 1957 under the corporation, and after that it became dormant.
Q It became dormant then?
A Yes, sir.
Q So it was only this five-month period these gentlemen, the plaintiffs and the defendant, were paid by the corporation?
A By the last corporation, yes.
Page 33
Q By the last corporation?
A Yes.
MR. GILMORE: No further questions.
THE COURT: You may step down. Call your next witness.
MR. ROMANIK: The defense rests, your Honor.
MR. GILMORE: May we have two or three minutes’ recess?
THE COURT: Yes. We will take our morning recess at this time.
(Recess)
MR. GILMORE: I will call Mr. Perryman as part of our rebuttal.
LLOYD PERRYMAN, one of the plaintiffs herein, called as a witness in rebuttal, having been previously duly sworn, was examined and testified as follows:
THE CLERK: You have been already sworn. Will you just state your name again for the record.
THE WITNESS: Lloyd Perryman.
DIRECT EXAMINATION BY MR. GILMORE:
Q Mr. Perryman, you heard Mr. Farr testify just before recess?
A Yes.
Page 34
Q I show you Defendant’s Exhibit A, which purports to be the records of the corporation for the second quarter of 1957. I notice by these records that you and Dale Warren and Mr. Doss and Mr. Karl Farr and Mr. Hugh Farr all had the same deduction for state disability, each in the sum of $22.13.
A Yes.
Q Was that deducted from your salary during the five months that the corporation operated?
A Yes.
Q I also notice in examining these records and the document pertaining to you that you paid the FICA tax in the sum of $49.77, which was the same FICA tax as was paid by Mr. Hugh Farr and by Mr. Karl Farr; is that correct?
A Yes.
Q I also notice you paid a withholding tax during this period totaling $368.37, and that Mr. Doss paid a withholding tax of $358.43, and Mr. Karl Farr $378.29, and Mr. Hugh Farr paid a withholding tax of $378.29, so you paid your withholding tax then during the period that the corporation was operating during these five months?
A Yes.
Q Mrs. Farr testified that a meeting was held at her home at which all of you plaintiffs were present and also Mr. Hugh Farr, at which you objected to paying the so-called unemployment tax. First, was there such a meeting?
Page 35
A There was a meeting.
Q Did that meeting take place at Mr. Farr’s home?
A Yes.
Q Were all these gentlemen at counsel table present except Mr. Romanik?
A Yes.
Q Will you tell the Court what was said at that meeting?
A At this meeting at their home it was brought out that a corporation had been formed – and, well, I had been already advised of this, and it was merely to explain that there would be the withholding tax, and so on, the regular withholding that is listed here, and we agreed to go along with that. That was all right at that time. It was still all right until I believe the second week that we worked at Lake Tahoe that year – and that is shown in these records – when an employers’ tax was added to our deductions, of which we knew nothing, and that was when we decided that we didn’t want to go along under those circumstances with this added tax. We did not object to withholding FICA and the regular deductions, but we objected to the employers’ tax.
Q Then was there anything else said at that meeting?
A We asked if we didn’t think it would be beneficial to all concerned to go back to the way we had
Page 36
been working previously at what we considered a partnership. And it was finally agreed upon by all the members that we would go back to the partnership, where there was no withholding and actually the corporation would go dormant.
Q During the five months you people operated under this corporation did Mrs. Hugh Farr make a charge for her services for keeping the books?
A Yes, there was a bookkeeping charge.
Q How much a week did she charge for those services?
A I think it was finally about $35 a week.
Q Did you and Mr. Karl Farr and Mr. Warren and Mr. Doss object to that?
A No, we didn’t object too strenuously, because it wasn’t a great amount of money and someone had to keep the books and she seemed to be competent in that.
MR. GILMORE: Your witness.
THE COURT: Any questions?
MR. ROMANIK: Yes, And it please the Court.
CROSS-EXAMINATION BY MR. ROMANIK:
Q Mr. Perryman, to your knowledge was there an employers’ share paid to the federal government?
A An employers’ share?
Q The employers’ contribution.
Page 37
THE COURT: The employers’ tax.
MR. ROMANIK: Yes, the employers’ tax.
Q Do you know whether that was paid?
A I couldn’t say, because I never saw these books until now.
Q Did you pay any portion of it?
A I did one week. I am quite sure that each of us paid an equal amount one week.
Q That was the week you objected?
A Yes, that was the week we objected that we didn’t want it deducted the following week.
Q And is it not a fact that at the time of your objection you stated you would leave the corporation rather than permit such deductions?
A We said – Mr. Doss, Mr. Warren, Mr. Fisher and Mr. Karl Farr also wanted it terminated – and we said we would leave the group.
Q When you said “We will leave the group,” you mean all those you named?
A Yes. We thought we should not be charged for something we did not own any stock in, that if there is an employers’ tax the employer then under the corporation rules would pay the taxes, I would think.
THE COURT: Did you consider you were the employee of the corporation at the time?
THE WITNESS: No, no. I didn’t feel we were employees
Page 38
of the corporation. We still had our meetings.
THE COURT: Did you continue to operate the same way you had operated previously?
THE WITNESS: Yes, except that we each had a share in the withholding.
THE COURT: You each had a share in the operation of the group as you did previously?
THE WITNESS: Yes, sir. We discussed everything.
Q BY MR. ROMANIK: Were all the contracts during that period of time taken in the name of the corporation?
A Yes, I think so. I think they were taken in the name “Sons of the Pioneers, Inc.”
Q Then necessarily you did not sign for any of them?
A No, sir, not during that time.
MR. ROMANIK: That is all.
THE COURT: You may step down.
MR. GILMORE: The plaintiffs rest.
MR. ROMANIK: The defendant rests.
THE COURT: I will hear from you if you want to argue the matter.
MR. GILMORE: I will submit it.
MR. ROMANIK: I would like to be heard briefly, your Honor.
(Argument by Mr. Romanik)
THE COURT: It seems to me, in view of the concessions
Page 39
which you necessarily have to make, because the evidence is crystal-clear with respect to these matters, to wit, that there is no evidence to indicate any fact that the employer-employee relationship exists, and there are other facts which lead inevitably to the conclusion that there was a partnership – In view of that, it seems to me we would have to approach this case as a starting point on the assumption that a partnership did exist and exists. I do not want to foreclose you from your argument in that regard. I am suggesting to you a starting point as to what is the right and the law and the justice to be applied to this case. I would like to hear from you additionally, but I want to respond to your argument thus far so I can more or less guide your thinking and your argument.
The creation of corporations during the years does not militate against the existence of a partnership, even though the partnership was in a dormant state. It was reestablished during the operation, even though we assume it did not continue during the existence of the corporation. It was reestablished. And the assets of the partnership continued. We have a choice of two relationships, either Mr. Hugh Farr was the employer of these people and they were his employees or it was a partnership.
(Further argument by Mr. Romanik.)
THE COURT: I was hopeful and I expressed in chambers the view that the original suggestion made by plaintiffs,
Page 40
that each corporation should be permitted to use the name, that is to say, that the plaintiffs use the name “Sons of the Pioneers’ and that the defendant likewise use the name, I was hopeful that that suggestion might be accepted by Mr. Hugh Farr. But that suggestion was rejected by him. For instance, the so-called Ink Spots have four different corporations operating under the name, and it would make the Court personally very happy if some equitable and satisfactory adjustment along those lines could be reached by the parties, but I am not in a position to either urge it or compel it. I am not asking you to do anything. I am merely pointing out certain possibilities to you. Suppose Mr. Hugh Farr should gather support behind him, financial or otherwise, or some third and different group should desire to appropriate this name. Then this group you represent would be merely in receipt of their share of the proceeds of the sale of the name, and I do not know how far they would be disposed to bid in seeking to acquire it for themselves, how much value they would attach to it and where they would cease bidding and someone else might acquire it.
It seems to me that all of these gentlemen have worked hard over the years, and the tragedy, as I indicated to you before in chambers of a brother pitted against brother, and these other gentlemen who have devoted themselves to this corporation – I do not know. I will take a recess if you think you can do anything about it.
Page 41
(Recess)
(Brief discussion between the Court and counsel.)
THE COURT: It seems to me, gentlemen, that the closest case in point insofar as the factual situation is concerned is that of Peterson in 47 Cal. App. At page 646. In that case one brother had started a business under the name of Restaurants Auto Service, and after operating for about three weeks he took his brother into partnership, and then eventually a third man, and they continued to operate for a period of some three years under the firm name. On dissolution the original partner asserted that the name was his and that he had made that in effect – or the court held that he had made that in effect a contribution to the partnership and that its value at the time of the contribution was nominal. The court further went on to say as follows:
(Reading)
“It is further found and the finding is supported by the evidence and by reasonable inferences that at the time of the formation of the partnership the name had no value, but by the joint efforts of the partners in conducting the business from June 1914 to July 1918 when the partnership was dissolved, ‘the good will of the partnership business, including the
Page 42
right, title and interest of said partnership in said firm name became, and at the time of the dissolution of said partnership was and now is of the value of $800.’”
Now, if that position be accepted then the original partners in this business were the owners of the trade name, and therefore when other partners were brought into the partnership the partnership continued to use the name, and in a sense it was a contribution the same as a contribution of any other personal property.
Then continuing:
(Reading)
“The suit for partnership accounting is one addressed to the equitable jurisdiction of the court. Under the facts found, even though the name was originally owned by the appellant, the court, in adjusting the respective interests of the parties, properly considered all the circumstances. The name, which had been used for three weeks, was of no value. The respondent went into the business carried on by the appellant at the request of the latter as a partner. It was agreed that the appellant’s automobile which had value should be used in the business, but the ownership retained. It was also agreed that the money invested in the business by the
Page 43
respondent should be used for the purchase of a machine. Before the termination of the partnership each of the partners had in use in the business two automobiles owned by them separately. On dissolution each retained his own tangible property. The name which was worthless when the partnership was formed was an asset and apparently the only asset of the business at that time. It was made valuable by the joint efforts of the two partners. If it had been some other kind of tangible personal property so worthless as not to have been the subject of agreement, but a part of the business establishment when the partnership was formed, and had had bestowed upon it the work of both partners for a period of three years, in use constantly as partnership property and without claim by the original owner, until at the time of the dissolution it came to have a substantial value produced solely by their joint work, it would be manifestly inequitable that it should be given to one only of the two who had produced the value.
“It is said in the appellant’s brief that the recordation of the name added nothing to his common-law rights. Neither could the secret
Page 44
recordation of the name by the appellant cause any diminution of the rights of his partner. The relationship was confidential and the recordation by one of the partners of the name under which the partnership had been doing business for six months in contemplation of law, was in the interest of the partnership.”
Now that case, it seems to me, is probably as close a case as you could find in California or elsewhere. And if we apply the reasoning of that case to the facts in this case we find that the original partners would have an asset in the name under which they operated, the “Sons of the Pioneers.” As to whether it had any substantial value at the time, for illustration, when Karl Farr joined the corporation, that would be a matter difficult to determine, that is, as compared with the value at the present time.
From the testimony of Hugh Farr it would appear that during the early years the earnings of the group were minimal, and during subsequent years, as the fame or renown of the group increased, the earnings of the group increased, so it would appear that the name gathered value by reason of the efforts of the various partners as they came in and contributed to the success of the group.
The parties have agreed that in dissolution, if the court finds a partnership, that the asset and the sole asset of the firm name would be shared equally by the
Page 45
partners. I dare say it would be almost an impossible task to determine equitably what share the defendant should have as opposed to the share of the others. It would be difficult to employ any yardstick, and that would seem as practical a solution as could be found.
I am satisfied, gentlemen, that a partnership existed and that the name was a partnership asset, and therefore, under the pleadings and under the stipulation of the parties, the Court must order a dissolution and sale of that asset.
The difficulty now presented or now facing the Court and all of the parties is whether an injunction should be issued forthwith enjoining everyone from using this name. Certainly the plaintiffs have no more right to use this name than the defendant, and if they all want to go out of business until such time as the various court proceedings can be completed and a sale effected, that can be done. I do not know whether they are operating now.
(Brief discussion between the Court and counsel.)
THE COURT: Certainly sitting as a court of law, and certainly sitting as a court in equity, the Court would be reluctant to take any action that would be harmful to any litigant. I have no desire to make any order that is not absolutely essential and required or which would result in a suffering by any of the parties to this
Page 46
litigation. I do not know how long these commitments continue and whether they will be reinstated. I should think that it would mean a loss suffered by everyone if at the present time all parties were enjoined from utilizing the name. That appears to me to be a matter of feeling rather than the exercise of proper business judgment. I do not know of any reason why the defendant, for illustration, should be foreclosed from completing his engagements merely because some feeling has been generated in this litigation and the plaintiffs are saying We will suffer, but we will make the defendant suffer too. I am not going to be a party to that unless I am compelled to be. I do not know whether the plaintiffs are operating now or not.
(Further brief discussion between the Court and counsel.)
THE COURT: To what extent, Mr. Hugh Farr, are your present commitments?
MR. ROMANIK: He has a favorable contract, your Honor, which was signed – When did you sign the contract?
MR. HUGH FARR: I do not know. The contract is in my agent’s office and some of them are signed and some of them are not. I would have to find out.
MR. GILMORE: I know from his agent there is one in February.
THE COURT: How long will that be?
Page 47
MR. HUGH FARR: Four weeks, with a four weeks option.
THE COURT: That is eight weeks. What part of February?
MR. HUGH FARR: The 4th.
THE COURT: That will be in February and March then.
MR. GILMORE: Yes, sir. I know that that contract was executed.
THE COURT: Could we arrive at some understanding, Mr. Gilmore, whereby each of the parties could continue the use of this name until such time as all present commitments have been concluded?
(Further brief discussion between the Court and counsel.)
(Recess)
MR. ROMANIK: If the Court please, in accordance with the previous discussion had we would like to enter into a stipulation. It will be stipulated by all parties hereto through their respective counsel that all parties hereto shall have the right to the trade name “Sons of the Pioneers” to and including April 10, 1960, and thereafter an injunction shall issue prohibiting the use of said trade name by any of the parties hereto until there has been concluded a judicial sale of said trade name.
THE COURT: Prohibiting the use of any of the parties unless they should be the purchasers and acquire the right to the trade name and the good will at the judicial sale; is
Page 48
that correct?
MR. ROMANIK: That is right.
THE COURT: You join in that stipulation, do you?
MR. GILMORE: Yes, sir.
THE COURT: If a sale is effected prior to April 10, 1960 to anyone else that that sale be made subject to the right to the use which you have indicated.
MR. ROMANIK: Very good.
THE COURT: You both join in that?
MR. ROMANIK: So stipulated.
MR. GILMORE: So stipulated.
THE COURT: In view of the determination of the Court as heretofore indicated, judgment will have to be in favor of the plaintiff for a declaration that a partnership did exist and does exist between the parties; that the partnership be dissolved, and that the name “Sons of the Pioneers” and the good will off the partnership – I assume you gentlemen want good will included?
MR. ROMANIK: Yes, your Honor.
MR. GILMORE: Yes, your Honor.
THE COURT: (Continuing) …that the good will of the partnership and the name “Sons of the Pioneers” be sold through a receiver to be appointed by the Court. There again, gentlemen, is it satisfactory that Mr. R. E. Allen be appointed receiver?
(Both counsel so stipulate)
Page 49
THE COURT: What do you suggest as to the amount of the bond, gentlemen?
MR. GILMORE: With that receiver we will waive the bond.
MR. ROMANIK: I do not know him but I will take Mr. Gilmore’s word for it and waive the bond also.
THE COURT: Then bond is waived. Mr. R. E. Allen is appointed receiver for the purpose of selling the sole partnership assets, the good will and the name “Sons of the Pioneers”. Do you waive findings?
MR. GILMORE: Waive findings.
MR. ROMANIK: I am afraid I am not empowered to waive findings, your Honor.
THE COURT: Very well. The plaintiffs to prepare findings.
(Whereupon the trial in the aforementioned cause was concluded.)
Page 50
STATE OF CALIFORNIA, )
) ss:
COUNTY OF LOS ANGELES)
I, GRACE ROGERS, an official reporter of the Superior Court of the State of California, for the County of Los Angeles, do herby certify that the foregoing pages number 1 to 49, inclusive, comprise a full, true and correct transcript, excluding argument, of the proceedings had on Tuesday, December 15, 1959, in the matter of the aforementioned cause.
Dated this 10th day of November, 1967.
(signed) Grace A. Rogers, Official Reporter.
[1] Shug Fisher joined the Pioneers in 1943 after Pat Brady was called into Service.
[2] Tommy Doss joined the Pioneers on July 15, 1949, after Bob retired.
[3] After Bob retired in 1949, Hugh was the only original member left.
[4] Pat Brady became a member in October, 1937.
[5] Brady was a member of the Sons of the Pioneers until 1949 when Roy Rogers “borrowed” him. He rejoined the group in 1959 when Shug Fisher retired and remained until 1967.
[6] Ken Curtis joined the Sons of the Pioneers after Tim left early in 1949.
[7] Dale Warren joined the Sons of the Pioneers in December, 1952.
[8] Lloyd Perryman had filled in for absent members of the Sons of the Pioneers before he became a full-time member in September, 1936, and remained until his death on May 31, 1977.