Beverley v. Noel

YORK, J.

Action for an accounting. The complaint alleged that the parties engaged in a partnership in September, 1920, whereby the plaintiff was to obtain options on oil-bearing lands, and the defendant was to negotiate the same, the profits, realized therefrom to be divided equally between the parties. The answer denied these allegations,

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but admitted payment to respondent of certain sums of money for services rendered. The court found that the relation established was that of a joint enterprise, rather than a partnership, and this conclusion is not now a subject of dispute.

At the trial there was a sharp conflict in the testimony as to what was the agreement between the parties. The trial court found in favor of the plaintiff to the effect that the parties had engaged in a joint enterprise; that a profit was made; that there had been an accounting as to all business transacted between them, with the exception of four options—those known as the Carter, Harvey, Ralph and Wagner options and leases. As to these transactions, a reference was ordered, the court reserving to itself for settlement and determination, the propriety of all expenditures made in connection therewith. After the report of the referee had been made and approved, the court made its findings in favor of the plaintiff as to these four matters, setting forth the amount of gross profits derived therefrom, and the expenses properly deducible. Neither the referee’s report, nor the evidence taken by him, can be found in the transcript.

From the judgment entered pursuant thereto, the defendant appeals, and makes the following specifications of error:

(1) That portion of finding of fact No. V to the effect that the Mrs. Wagner option, which was executed on November 14, 1921, was negotiated by appellant; that the respondent was entitled to a division of the net profits; and that the net profits amounted to $1180, is contrary to the evidence;

(2) Finding of fact No. VII to the effect that on June 23, 1923, appellant was indebted to respondent in the amount of $2,531.60 as one-half of the net profits on the said Carter, Ralph, Harvey and Wagner options, is contrary to the evidence;