O'Reilly v. Johnson

DORAN, J. This is an appeal from the judgment. The action is for an accounting and one-half of the profits earned in a joint venture of plaintiff and defendant.

The answer in addition to a general and special denial alleges an affirmative defense of estoppel in that plaintiff [730]had accepted payment of a certain sum in full settlement, also that the contract had been fully performed by defendant.

The facts as recited by appellant are as follows:

“Plaintiff was a doctor. Defendant was a contractor. They orally agreed that plaintiff would put up the capital and they would buy a house, fix it up, sell it and divide the profit. The house was purchased in January, 1945, at a cost of $4,300.00. Plaintiff advanced $4,020.00 of the purchase price, and defendant advanced the remaining $280.00.

“Defendant took title to the property in his own name. Plaintiff contended that title was to have been taken in their joint names, and that defendant breached their agreement by taking title alone without plaintiff’s consent. Defendant testified that it was agreed that title was to be taken in his name. The court made no finding on this point. Nevertheless, in this way defendant controlled the sale of the property and eventually the proceeds of the sale.

“Defendant moved into the property and worked on its improvement while carrying on other work. He lived in the house until it was sold in August, 1946. That was for a period of approximately twenty months.

“The house was sold for $9,000.00, and yielded a net of $8,467.32 after commission and costs of sale. The defendant received all of that money.

“Plaintiff alleged that defendant failed and refused to render him an accounting or pay plaintiff his proportionate share of the profit. Defendant denied this, but the evidence shows that at no time did he ever render plaintiff an accounting of the profits of the joint venture. In fact the joint venture, the contribution of the parties, the gross profit, and the receipt of that profit by defendant are all admitted by the evidence or found to be true by the findings.

“Defendant’s theory of the case now is that no accounting of profits or findings thereon are necessary because, he contends, there was a novation. He pleaded as a special defense that after the house was sold he sent to plaintiff his check for $4,431.65, which plaintiff accepted without any objection ‘ as a cancellation of the former agreement and as a satisfaction of his claim against said defendant’.