Dorwart v. Ball

• Citation: 98 N.W. 652,71 Neb. 173
• Decision Date: 17 February 1904
• Docket Number: 13,414
• Parties: DEWITT Y. DORWART v. JOHN H. BALL
• Court: Supreme Court of Nebraska

98 N.W. 652

71 Neb. 173

DEWITT Y. DORWART v. JOHN H. BALL

No. 13,414

Supreme Court of Nebraska

February 17, 1904

ERROR to the district court for Saline county: GEORGE W. STUBBS JUDGE. Reversed.

REVERSED.

R. M Proudfit, for plaintiff in error.

J. D Pope, contra.

HASTINGS, C. AMES and OLDHAM, CC., concur.

OPINION

HASTINGS, C.

In this case, plaintiff sues to recover $ 50, which he alleges to be due on account of one-half of commissions earned by himself and defendant as real estate brokers, in partnership; he alleges a partnership existing between the parties on December 10; that on that day the $ 100 was paid in; that the defendant refused to pay over any share of it, but that on December 13 an accounting was had between the partners and all partnership debts paid in full, the partnership dissolved, and the $ 50 was then found due; that it has not been paid and judgment is asked for it, with interest from December 13, 1901. The answer denies all of the plaintiff's allegations; alleges that plaintiff bought out a former partner of defendant, and was never himself accepted as such partner; that, during the time from December 1, 1901, to December 9, plaintiff remained about the office a part of the time but had no part in the business; that on December 9 plaintiff was told that he could not remain in the business, nor receive any share of the receipts; that after that date plaintiff attempted to take no further part in the business. A special denial of any settlement of firm accounts or firm indebtedness, and a denial of any contribution toward firm expenses by plaintiff, is also interposed. After hearing the evidence, the trial court instructed the jury to return a verdict for the defendant. A motion for a new trial was overruled and judgment entered on the verdict, from which the plaintiff brings error, and he now insists that his case should have been submitted to the jury. The defendant says that there is no evidence, either of a settlement of partnership accounts or of any receipt on defendant's part of the $ 100. The evidence by plaintiff indicates that on December 2, 1901, with the consent of Mr. Ball, and under agreement with the latter that he should have the rights of a partner, he purchased from C. M. Druse one-half interest in the firm of Druse & Ball, real estate, insurance brokers and loan agents; that the arrangement continued until the 13th of the same month, when it was dissolved; he testifies that there was one sale made of 160 acres of land, "and the commission for selling this was $ 100"; that, on a settlement had, Mr. Ball agreed to pay all of the office expenses, and that during the 11 days of plaintiff's connection with the business the only thing bought was some coal, which plaintiff purchased; that he sold to Ball his interest in the furniture for $ 45. The $ 50 commission was not agreed to be paid, Ball claiming that it really belonged to him, and, when plaintiff demanded it at the time of the settlement, declared he would not pay it until he had to. Mr. Littlefield, the purchaser of the land, says that Mr. Dorwart was introduced by Ball as being the latter's partner. It appears that Littlefield went to see the land, as Dorwart testified; he does not remember the date, which Dorwart says, and Ball does not deny, was December 5, but it was in the forepart of December; that on the following day he closed the contract for the land; that he did this with Mr. Ball, who told him to say nothing about it to Mr. Dorwart, because he was going to dissolve partnership with the latter; that he paid at the office of Dorwart & Ball some money on the land contract. The other testimony seems to identify this payment as made on December 7. Defendant's account of the matter is that, at the time of the alleged settlement, he made Dorwart an offer to take the furniture and continue on in the same place, or for Dorwart to do so. "I said to him, I will take $ 50 for my share of the furniture, or I will give you $ 50 for yours and you can get out of the office, and I then told him that from that time on what he did was his, and what I did was mine, he was to keep all that he made and I was to keep all that I made."

Q. Now, was there anything at that time said about the expenses of the office, and partnership accounts?

A. No, sir. Defendant says that no disposition of the insurance business was made, and that the $ 45 was for the furniture; that Mr. Druse had the agency for some of the insurance companies, and himself, Ball, some; that he tried to get Druse's agencies transferred to Dorwart; that Dorwart at that time wanted this $ 50 from the Littlefield commission.

As to this the testimony is as follows:

Q. Was there anything said by you at this time about the $ 50?

A. He wanted me to give it to him.

Q. Did you agree to give it to him?

A. No, sir.

Q. What did you say about it?

A. I said it was made after we had dissolved.

Mr. Ball denies making settlement with Dorwart as to the office expenses; he admits, however:

Q. And you assumed the office expenses?

A. Yes, sir, but there was nothing said about this at the time of the settlement.

By the Court: Q. Was there anything said about this matter at any time?

A. No, sir.

He says that Dorwart said nothing about the rent; that he does not know whether or not stationery was bought. Mr. Ellsworth, the justice of the peace, who dismissed the case on the evidence, for lack of jurisdiction, after a jury was impaneled, was called and testified that Dorwart, in the trial before him, did not testify to any settlement with regard to expenses.

It seems clear that the foregoing evidence shows as to the receipt of the $ 100 commission, enough, standing uncontradicted as it does, to sustain a verdict finding that the $ 100 had been paid to Mr. Ball before Dorwart surrendered his interest in the business. As above stated, it seems from statements of Ball and Dorwart, and the purchaser, Mr. Littlefield, that the transaction must have been closed on the 7th, and the sale of the office furniture to Ball by Dorwart seems to have been upon the 11th. At least, that is the date under which Dorwart receipted for the $ 45 payment. There is nothing to indicate that there is any further outstanding claim against the partnership. It is expressly declared by both Ball and Dorwart that the only item of business done, out of which any profit could come, was this sale to Littlefield of the Stowell land. In this state of affairs it seems clear that, if it was true, as Dorwart testifies, that there was a settlement, and that Ball agreed to take the furniture at $ 45 and to settle the expenses, there could be nothing left to settle as to this partnership business except the one item of $ 100 of earnings, as to which Ball refused to give up any part, on the ground, as he himself says, that it was "made after they had dissolved."

To sustain the instruction for a verdict for defendant, we must assume all the facts indicated by plaintiff's evidence to be true, and still find that there is no cause of action. Assuming all the facts as true to which Dorwart testifies, a sale of his interest in the property, except five chairs and a desk, which he took out, an agreement by Ball to pay office expenses during the time Dorwart had been in a dissolution of the partnership, and the fact that this $ 100 was the only money earned during the partnership and that it had been paid in as above indicated by Littlefield's testimony, and by Ball's admission that it had been...