Chapman v. Gipson

DORAN, J.

The complaint herein was instituted by appellant Chapman for the purpose of dissolving a partnership existing between Chapman and respondent Gipson and to secure an accounting. Appellant alleges that respondent had “misapplied partnership receipts, profits and funds, secretly in bad faith, misappropriated co-partnership property funds wrongfully, and persisted in bringing some $4,000.00 worth of electric parts into the co-partnership place of business” alleged to have been stolen. Appellant’s brief avers that on February 6, 1947, some four months after starting the business, “plaintiff and respondent ceased to do business as a co-partnership.”

Respondent’s answer alleges an oral agreement to pay appellant $1,295 for appellant’s interest in the business, and willingness to pay such sum. Some nine months later respondent filed a cross-complaint for dissolution and accounting. Appellant’s answer to this cross-complaint alleges termination of the partnership and that the disagreement arose because respondent Gipson refused to produce a bill of sale showing legitimate acquisition of the alleged stolen electric parts. This disagreement led to a fist fight between the two partners.

As stated in appellant’s brief, the parties and attorneys appeared in court on February 19, 1948, and appellant tendered to the court “A voluminous 40-page typewritten accounting . . . and a copy of a voluminous accounting made by Certified Public Accountants employed by respondent.” The trial court, however, refused to hear the matter and referred it for an accounting to J. W. Mullin, Jr., a special referee. The referee was then “furnished with a 44-page written accounting, prepared in great detail, together with an inventory, by appellant N. B. Chapman, and an accounting in writing prepared by respondent’s accountant.” A hearing was held before the referee on November 26, 1948, and on February 17, 1949, the referee’s report was filed with the trial court.

On February 23, 1949, appellant’s brief avers, “without notice to appellant, the court signed an order” adopting the

[587]

referee’s report; respondent then moved the trial court to set aside such order and, on notice, to confirm the referee’s report. Appellant complains that “The customary five days’ notice” of this hearing was not given, but admits that on “Apr. 27, 1949, both counsel appeared in opening court and appellant objected to the referee’s report.” The trial court adopted the referee’s report and ordered judgment accordingly. A minute order of June 8, 1949, recites: “Counsel for defendant is ordered to prepare Findings and Judgment,” and appellant complains that no such findings of fact or conclusions of law were ever entered, and that there was no waiver thereof. The judgment entered was in respondent’s favor in the amount of $2,386; the referee’s fees were divided equally between the parties.