Page v. Preuss

KINCAID, J. pro tem.* Defendant appeals from a judg ment in plaintiff’s favor in the sum of $2,547.70 based upon a complaint seeking declaratory relief. The court found that on or about June 5, 1959, plaintiff and defendant John E. Preuss, individually and doing business as John E. Preuss Trucking Company, entered into an oral contract whereby plaintiff was to have the possession and use of a certain 39-ton, 60-foot, 1950 Ford truck and trailer; that plaintiff would operate and haul as an independent contractor using said truck and trailer; that defendant would act as plaintiff’s freight agent; that defendant would collect all earnings from plaintiff’s operation of said truck and trailer; that defendant would allocate 25 per cent of the gross of such earnings to plaintiff for his personal use, and 75 per cent thereof, less certain operating expenses, as credits towards the purchase price of said vehicles, and when said credits equalled the sum of $4,500, defendant would transfer legal title of said truck and trailer to plaintiff; that defendant would honestly and accurately account to plaintiff for said transactions. That pursuant to the contract terms, defendant kept all accounting records concerning said transaction, and collected all funds in regard thereto.

The court further found that pursuant to said oral agreement to purchase plaintiff worked as an independent contractor using the truck and trailer and on or about November 22, 1959, accumulated credits from defendant of $2,547.70 but did not become entitled to have the legal title to the vehicles transferred from defendant to plaintiff; that defendant owes plaintiff this sum on the basis of money had and received for plaintiff. That defendant rendered an accounting to plaintiff and the value of the vehicles on or about November 22, 1959, was $4,500. The court also found the contentions of defendant to be untrue that the terms of the oral agreement were that if plaintiff continued to work for defendant he would be permitted to purchase the truck and trailer for $4,500 but if he quit before completing the purchase he would be paid only [496]the same as other truck drivers and that defendant is not indebted to plaintiff.

The evidence fully supports the foregoing findings. Following frequent demands of plaintiff for an accounting commencing in June 1959, several discussions were held between plaintiff, defendant, the latter’s wife, business associates of defendant and others. Mrs. Preuss was active in the management of the business during her husband’s frequent absences and was one of his bookkeepers. Plaintiff contended he had accumulated at least $4,500 in credits so as to entitle him to receive title to the vehicles and defendant, personally and through his wife, submitted various figures for plaintiff.