Durphy v. Pearsall

BURNETT, J.

The action is based upon an alleged partnership between plaintiff and defendant. Among other things the plaintiff prays: “That an account be taken of all of said copartnership dealings and transactions from the commencement thereof and of the moneys received and paid out by plaintiff and defendant for and on account of said copartnership. ’ ’

The judgment was against defendant for $6,048.91. Defendant has appealed from the judgment and also from an order denying his motion for a new trial. These appeals are presented in separate transcripts but we shall consider them together. All the points made by appellant except two seem to be satisfactorily answered by respondent. As to those two propositions, however, respondent has not attempted in his brief to afford the court any assistance, and it cannot be said that the points are unimportant.

The first is that: “The court’s finding of fact No. 15, to the effect that appellant’s net profits from the Henry deal were $16,196.41 is not justified by the evidence. ” According to appellant’s figures the gross profits from the sale of the thirteen thousand acres in the Henry deal were $38,000 and the expenses were $33,500, and since admittedly plaintiff was only interested in the sale of ten thousand and forty acres, the proportional net profit in which he is entitled to share is about $3,500 instead of $16,196.41, as found by the court.

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There is undoubtedly some evidence to uphold appellant’s contention in this regard, and respondent might well have called our attention specifically to the evidence upon which he relies to support the finding.

Again, appellant claims “that there is another error in the same finding where the court subtracts $6,215.10, advanced by defendant to plaintiff from the gross profits instead of from the net one-half belonging to the plaintiff.” Appellant’s position would be sound if it appeared that the $6,215.10 were advanced from the separate funds of defendant, but, on the contrary, the finding shows that it was a part of the partnership funds, as it was realized from the Henry sale.

There appears to us, however, to be a mistake in the figures which seems to have escaped the attention of counsel and the learned trial judge. The said finding 15 discloses that defendant received of the partnership funds the sum of $16,-196.41; that plaintiff received $6,215.10 advanced by defendant and $11,000 from the Hammond deal, making a total of $17,215.10. The total amount received by plaintiff and defendant was thus $33,411.51. If they were to share equally each would be entitled, therefore, to $16,705.75. But, under the agreement of April 3, 1900, defendant, out of his share, was to pay plaintiff $3,500. Add this amount to $16,705.75 and we have $20,205.75, the sum plaintiff should receive. But he had already received $17,215.10. The difference, or $2,990.65, is the amount for which he, should have judgment, assuming that the record discloses no other defect.