McPherson v. Great Western Milling Co.

[492]

BRITTAIN, J.

The defendant appeals from the whole of a judgment against it for $2,049.04. The complaint was upon seven distinct causes of action. The last six were for rentals of real property, the selling price of specific personal property, and the use of other personal property. A portion of the judgment was for interest and for various sums found to be due under the last six counts. In its briefs the appellant attacks only that part of the judgment, amounting to $1,062, found to be due under the first count, which, therefore, alone need be considered.

A contract dated June 21, 1915, between the parties was set out by exhibit and it was alleged that the contractual relationship of the parties was dissolved by mutual consent on December 31, 1915. It was further alleged that at that time the defendant had promised to pay the plaintiff one-half of the profits of the business to which the contract related, amounting, as the plaintiff was informed and believed, to $1,327.32, no part of which had been paid. A demurrer to the complaint was overruled; the defendant answered, denying only the allegations concerning the promise to pay and the fact of the debt, and alleged the plaintiff owed it $1,166.31, which, it was further alleged, “is in excess of one-half of the net earnings of said business for the years 1914 and 1915, which became due to the defendant and cross-complainant under the terms of said agreement.” This affirmative allegation was in the answer. There was also a cross-complaint, but no question is presented concerning it. In the contract the appellant corporation was the party of the first part and the respondent the other party. It recited that the respondent, for about two years, had been operating for the appellant a business belonging to the appellant in the sale of merchandise, “said party of the second part having received remuneration for his services therein one-half of the net proceeds earned by said business, said party of the second part having furnished his entire time and in addition thereto three wagons and five horses, and it is hereby desired by both parties hereto that an agreement be entered into in writing so that there may be no possibility of a misunderstanding and all verbal agreements heretofore are void and this agreement is to be final.” It was then agreed that the appellant corporation was the owner of the business, and that “all the accounts, stocks and