Iffland v. John

[532]

KING, J.,

pro

tem.

The action seeks a judgment that plaintiff and defendant formed a copartnership as building contractors; that the copartnership be dissolved; that the defendant be required to account for alleged profits, and ■ that the amount found remaining to the credit of the co-partnership be determined and distributed.

The court below found that there was a copartnership, that a profit of $1200 had been realized, which was held .by defendant, that plaintiff had received $350 only of this sum, and gave him judgment for the remaining sum of $250 as his half of the profits.

Defendant appeals, raising two points: 1. The trial court erred in overruling appellant’s objection to the admission of respondent’s testimony upon the cost of constructing the two houses in question. 2. The evidence does not support the trial court’s finding of fact that there remained in the hands of defendant as net profit the sum of $1200.

As to the first point the testimony shows that the partnership was formed by an oral agreement by which the 'defendant was to secure the contracts and attend to the business affairs, receive, hold and disburse the funds, while plaintiff was to superintend the actual construction of the buildings. They built a house for one Russell for which there was paid to defendant $3,800, and a house for one Cochrane for which he was paid $3,500. Respondent testified that the cost of the Russell house was $2,772.85, while appellant’s evidence was that it cost $3,156.85. As to the Cochrane house, respondent stated that the cost was $3,104.40, and appellant that it was $3,639.59. If respondent be correct, the net profit on the two jobs was $1422.75, while appellant’s figures would make the amount $503.56, of which respondent’s share would be less than the $350 which he admitted receiving.

The learned trial judge very plainly stated at the close of the trial: “I am inclined to discredit the defendant in this case, the manner in which he testified with reference to those checks. . . . The court takes the view such an attitude on the part of the defendant compels the court to east discredit upon his other testimony. He knew very well it wasn’t all labor, that $475.00, and the court is satisfied it wasn’t. Some of it was a gambling debt, and he certainly