Weier v. Thorne ( 1965 )

The appointment of a referee by the Court of Appeals in an equity case, such as the instant case for an accounting, involving a trial de novo, in order to take further testimony, make findings of fact and report conclusions of law to the court, falls within its inherent and statutory authority. Dillon v. City of Cleveland, 117 Ohio St. 258. Reference of an equity matter to a referee, or refusal to make a reference, is within the discretion of the court. Section 2315.27, Revised Code. However, in the instant case, involving numerous transactions covering a period of four years between a principal and his agent, in the interests of substantial justice, in order to obtain all the facts possible so as to be able to render a judgment based on all the facts, appointment of a referee for this purpose should be made in the exercise of judicial discretion.

Aside from the question of appointment of a referee, upon a review of all the evidence adduced in the trial court, and available to this court on appeal on questions of law and fact, I find that the plaintiff is entitled to a finding in his favor and final judgment thereon against the defendant, for certain items hereinafter enumerated for which the defendant failed to give an accounting to the plaintiff, in the sum of $1,775. The evidence disclosed that the defendant collected at least $7,100 in the Marina business for which he gave no accounting to, and made no division with, the plaintiff.

At paragraph 29 of the memorandum comprising the agreement for the operation of the Marina it is provided as follows:

"The NET profit derived from any labor or service performed on any watercraft by the OPERATOR without any help or assistance paid for by the OWNER, shall be divided for the OPERATOR 75% and for the OWNER 25% excepting the winter storage fee which is provided for under the caption of TRAVELIFT. Propellor removal or similar work, washing of hull of craft for winter storage or other work necessary for winter storage draining of engine and toilet and such other work of similar nature, shall come under this caption."

Plaintiff's Exhibit I showed a continuous purchase of radios in excess of $5,000 in value from Bell Radio, and the defendant admitted resale thereof to Marina customers of twenty-three or twenty-four radios covered by this exhibit at a $30 markup or profit for each radio, for a total profit of $600. Defendant also admitted on cross-examination that he performed services on boats for Dr. Courtney, collecting at least $2,000; services for Dr. Taylor, collecting at least $2,000; and services for Mr. Rockenbaugh, for which he collected at least $2,500. These four items total $7,100, and the defendant admitted that he never reported or accounted for these items at any time to the plaintiff. In accordance with paragraph 29 of the agreement set forth above the plaintiff was entitled to 25 per cent of this sum collected by the defendant, and this sum is $1,775.

The evidence discloses many other transactions, besides those to which reference is made above, which the defendant did not report to the plaintiff, and for which no accounting was made, but the profit, if any, derived by the defendant from these was never proved. To fully disclose these myriad, unreported transactions is the urgent reason for an appointment of a referee to take further testimony. Since only speculation and conjecture can be applied to these partially proved failures of defendant to account, no money award, in addition to $1,775, should be made to the plaintiff.