Tyler v. McChesney , 190 S.W. 1115 ( 1916 )

HIGGINS, J.

McChesney brought this suit to dissolve the partnership theretofore existing between himself and appellants, J. L. and R. P. Tyler, doing business under the firm name of Southern Land Development Company; McChesney having a one-fourth interest in the firm, the appellants jointly owning the other three-fourths interest therein. The appointment of a receiver and an accounting of the partnership affairs was also sought.

The Southern Land Development Company was originally organized by McChesney, Brooke Smith, and the Tylers; each having a fourth interest therein. Its business was to cut into town lots certain acreage property and sell same. Subsequent to its organization, J. L. Tyler acquired tlie Smith interest. The books of the partnership consist of a ledger and a contract register. The contract register contained the accounts of the various purchasers of lots from the company. In it would be entered the name of the purchaser, his address, number of contract, and payments made by him. The lots were sold on payment of $10 cash and $10 per month until $170 had been paid. The register also showed the amount of agent’s commissions paid out of each purchase. This was the only record the company had with its customers and agents, and it was testified to by all parties that it was correct; none of such accounts being in the ledger proper. The ledger proper showed other accounts, viz. the accounts of the individual partners, interest and discount account, furniture and fixture account, expense account, real estate account, and other items outside the sale of lots, which, as stated above, were shown only in the contract register. Both the contract register, showing said receipts, and the ledger, showing all other accounts, were offered in evidence. The totals of the various accounts are testified to and are not disputed, and a summary thereof appears in the statement of facts and is taken as correct by the parties.

The items of the accounts disputed by McChesney were numerous, but on the proof only a few were considered. First, McChes-ney claimed that $5,888 paid by the firm to the Tylers as bonus on land conveyed by them to the firm was excessive. Another disputed item was the charge of $1,400 against McChesney which was charged .to him as expense for clerical hire after the dispute between the parties arose and Mc-Chesney left the office and a clerk was hired to do the clerical work which he had been doing. Another item was $250 paid to attorneys for answering in a garnishment suit at Brownwood, Tex. An item of $50 paid to one Walter Browning, and another item of $83.70 paid to J. L. Tyler for traveling expenses. All of the witnesses testified to the total amounts of the various accounts in the ledger, and their testimony is not in conflict; but none of the witnesses testified to the receipts as shown by the contract register except McChesney, and his testimony is not disputed.

It appears that the defendants were attempting to settle upon the basis of the amount of money that the firm had in bank, rather than upon the basis of the receipts shown by the contract register. The real issue between the parties was as to the total receipts of the partnership, there being no dispute as to the amount of disbursements except the above items particularly mentioned, and appellants claim that the amount in bank showed the correct net receipts, while McChesney claimed that the contract register showed vastly more receipts than were accounted for by the cash in bank and the total disbursements as shown by the ledger; there being a variance of $11,000 or more. The jury returned a verdict in favor of Mc-Chesney for a one-fourth interest in the real and personal property of the firm, a one-fourth interest in the net profits which it found to be $16,958.30. They further found the difference between the cash market value of the real estate sold to the firm and the amount they received from the firm for the same to be $2,673, which they added to the net profits, making a total net profit of $19,-631.30. One-fourth of this amount, to wit, $4,907.82, was due McChesney, from which they deducted a charge against McChesney of $709.90, leaving the neb amount due him to be $4,197.92, which amount they found for him, and for which amount judgment was rendered in his favor, together with a one-fourth . interest in the real and personal property of the firm.

Error is first assigned to the court’s refusal to permit appellants to offer in evidence a trial balance made from the books of the company. In this there was no error. The issue to be determined was the net profits of the partnership. A trial balance would not show this. A trial balance simply shows that the books are in balance or out of balance as the case may be. It would not properly show net profits. The proper way to obtain the amount of the net profits' was to ascertain the company’s gross receipts and deduct therefrom all proper disbursements and charges. This a trial balance would not show.

Furthermore, the bill of exception fails to incorporate the trial balance, exclusion of which is complained of, and this court has no way whatever of determining what the trial balance showed. We cannot presume or assume that it would have thrown any light upon the subject-matter of the inquiry, for, as stated, a trial balance, ordinarily, would not do so.

The second and third assignments complain of the court’s refusal to permit the witness McAdams to testify that the federal attorney of the Ft. Worth district came out to investigate the Southern Land Development Company’s manner and mode of doing business and that they had out their contract, which was a contract to sell a lot and give so many acres1 of land with each contract, and that at that time they had no acreage save and except a tract cut up into lots, and that the federal attorney informed them it would be necessary to secure acreage property and put it into the name of the Southern Land Development 'Company; that McChesney was informed of this matter and of what the federal attorney had said and was aware and knew that, unless such acreage property was secured, all the members of the partnership were liable to prosecution. In the first, place, a conversation between McAdams and the federal district attorney, outside the hearing of the plaintiff, ordinarily would not be admissible in evidence against McCbesney; but, aside from this consideration, it is1 not apparent bow tbe facts wbicb tbe witness sought to detail would in any wise affect MeObesney’s right to an accounting, and has no bearing whatever upon tbe issue as to tbe amount of tbe net profits to which be was entitled. Tbe proferred testimony was wholly immaterial to any issue in tbe case.

R. P. Tyler, while testifying in bis own behalf, was asked by bis counsel this question:

“When it becomes necessary to go into your books, tbe system of bookkeeping that was carried on there, to get a true system (criterion) of actual cash received and paid out, to what books do you go for a true and correct criterion and guide?”

Objection was made by plaintiff, and tbe witness was not permitted to answer. If permitted to answer, tbe witness would have stated that be would go to tbe ledger and cash book to get tbe actual cash received and paid out. Error is assigned to tbe exclusion of this testimony. There was no error in tbe court’s action. R. P. Tyler was not a bookkeeper. All of tbe books of tbe company were offered in evidence. Tbe court permitted McObesney, who was a bookkeeper, Beauchamp, Browning, C. E. Tyler, and McAdams, all bookkeepers, and also R. P. Tyler, upon behalf of appellants, to explain tbe purpose of each and every book and to explain tbe accounts kept therein. It was therefore not error to exclude a general question calling for a mere conclusion of R. P. Tyler as to what book be would look to in order to ascertain tbe amount of cash received. His conclusion might have been an entirely erroneous one. In fact, it clearly appears that it was so.

Error is assigned to tbe admission of testimony of tbe witness J. W. Moore as to the value of certain lands. Tbe bill of exception taken to tbe admission of bis testimony shows that the objection urged in tbe lower court is entirely different from tbe objection urged in tbe brief, for wbicb reason the objection presented' under this assignment is overruled.

Error is assigned to# tbe refusal of tbe court to give a requested special charge instructing tbe jury that if tbe plaintiff voluntarily left tbe office of tbe copartnership, and if they found from tbe evidence that under tbe articles of copartnership plaintiff was to keep tbe books of tbe company, and by reason of bis failure to do so it became necessary to have tbe same done, then, for any amount so expended for such work, they would find tbe same to be a valid charge against the plaintiff. Tbe court’s charge sufficiently covered this phase of tbe case. Furthermore, tbe jury found a charge against him for tbe actual cost of doing tbe clerical work that be was supposed to do under tbe partnership agreement, to wit, tbe sum of $709.90. For tbe reasons indicated, tbe refusal of tbe requested charge presents no error.

Tbe court, in its charge to tbe jury, instructed it to deduct from tbe expense account said sum of $250 paid as attorney’s fees for answering a garnishment proceeding at Brownwood, and said sum of $83.70, traveling expenses of J. L. Tyler, and error is assigned to this instruction. It was a proper instruction. Tbe evidence shows that tbe $250 attorney’s fees was paid for answering in a garnishment against tbe Tylers individually, and this was not a proper charge against tbe partnership. As to tbe item of $83.70, the evidence shows that this was traveling expenses of J. L. Tyler, on his individual business, and, of course, that could not be charged against partnership funds.

It is contended that tbe verdict is vague and indefinite and not responsive to tbe pleadings, issues, and evidence. It is not pointed out in what particular it is subject to tbe objection urged, and we think tbe objections are without merit. Tbe verdict is clearly sufficient and responsive to tbe pleadings, issues, and evidence.

It is also contended that tbe verdict and judgment was contrary to tbe law and unsupported by tbe evidence. An examination of tbe testimony shows that tbe verdict is amply supported thereby, and, under tbe verdict found, tbe law was properly applied in tbe judgment rendered.

Affirmed.