Adams v. Adams

• Decision Date: 13 February 1953
• Docket Number: No. 33192,33192
• Citation: 57 N.W.2d 131,156 Neb. 540
• Parties: ADAMS v. ADAMS.
• Court: Nebraska Supreme Court

Page 131

57 N.W.2d 131

156 Neb. 540

ADAMS v. ADAMS.

No. 33192.

Supreme Court of Nebraska.

Feb. 13, 1953.

Syllabus by the Court.

1. An offer becomes a tender only if it is coupled with a present ability to act.

2. A formal tender is not waived by an indication of refusal in the absence of ability on the part of the party making the tender to perform at the time and make his tender good.

3. The rule that a formal tender is not required if it appears that if made it would have been futile is not available to a party who is without present ability to make a tender good.

Baskins & Baskins, North Platte, for appellant.

Beatty, Clarke, Murphy & Morgan, North Platte, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action in equity by Wilson T. Adams, plaintiff and appellee, against J. Sterling Adams, defendant and appellant, the purpose of which is to have dissolved a partnership entered into by and between the parties under a written partnership agreement dated July 14, 1947, to have the respective interests of the parties declared, for an accounting, and for a distribution of the assets of the partnership.

The cause was tried to the court and a decree entered. The decree contains numerous findings. From the decree in its relation to certain of the findings the defendant has appealed. From the decree in its relation to other findings the plaintiff has cross-appealed.

Neither of the parties appears to oppose the dissolution of the partnership. The real controversy relates to the accounting and declaration of interests therein.

The background of the action is that prior to July 14, 1947, the defendant was the sole owner of an undertaking business and establishment in North Platte, Nebraska, known as Adams Funeral Home. On July 14, 1947, plaintiff and defendant entered into a written agreement whereby the two became partners in the business. The agreement is of considerable length and for that reason important essentials only thereof will be set out and referred to herein. The agreement fixed the value of the merchandise, personal property, and good will at $30,000. No real estate was involved although the business was conducted in and upon property of the defendant. The acquirable interest of the plaintiff was one-third. Plaintiff in the beginning made no contribution of the capital assets. The agreed cost of acquisition was $10,000.

The general plan for acquisition of plaintiff's interest was that he should apply his share of the profits of the business upon the purchase price. Specifically it is provided that he had the option of paying by cash or at the rate of $20 per funeral conducted with exceptions as to certain types of funerals. The amount of $20 per funeral the parties have treated as agreed compensation which the plaintiff was to receive from the partnership for his work in addition to salary. The period for the computation of payments and the determination of plaintiff's interest appears to be the fiscal year from October 1 to September 30. If at the end of the fiscal year plaintiff had drawn only his salary, the aggregate of $20 for each funeral conducted during the year was to be credited upon the $10,000 and the amount so credited represented his interest in the partnership. This amount then became payable to the defendant. If plaintiff drew more than his salary then the excess was to be deducted from the aggregate for funerals and the difference credited upon the $10,000. This lesser amount then represented his acquired interest and the amount to which the defendant became entitled. The plaintiff was then entitled to participate in the profits in the proportion that this amount bore to the entire worth of the business.

It is evident from the evidence of the conduct of the parties that by 'entire worth of said business' they meant as of the date of the contract which was $30,000.

The agreement by its terms contemplated that plaintiff should receive a salary from the partnership. No amount however is specified. By agreement, and concerning this there is no dispute, he drew a salary of $200 a month from the beginning of the partnership to and including February 1949. Thereafter he drew $250 a month which he says was also his agreed salary. The defendant on the other hand says that there was no agreement as to the increase of $50 a month but that these amounts should be charged back against the aggregate of the $20 per funeral which he was entitled to receive.

The agreement did not by its terms contemplate a salary for the defendant. No salary was set up in the current operating records in favor of the defendant and there is no record that he withdrew any salary as such. Herein he contends that it was orally agreed that he was to have a salary of $400 a month. In this accounting he claims an indebtedness to him from the partnership of $400 a month for salary. Plaintiff denies the oral agreement and the indebtedness.

The agreement made no provision for rental for the property owned by the defendant and occupied by the partnership. An item of $1,800 a year was carried as a part of the current operating expense. It however was not received by defendant as such from the partnership. The defendant says that this was agreed upon. The plaintiff denies that it was agreed upon and urges that defendant is not entitled to receive it.

As to the salary the finding of the trial court was that the evidence failed to establish that at any time the salary of plaintiff was increased over $200 a month. It was further found that the right to a salary by defendant was not established at all. Also it was found that the defendant was entitled to receive $150 a month from the partnership for rental of the premises occupied.

As to the question of salary for the defendant and of rent for the premises we conclude that the finding and decree of the district court is correct and should be sustained. As to the salary of plaintiff we think that the evidence sustains the contention that it was increased to $250 a month from March 1949. Both parties agree that up to a certain time the plaintiff repeatedly complained about the amount of his salary. Then at the given time plaintiff says that the increase was agreed upon and that thereafter he drew semi-monthly checks for his salary in the increased amount which were signed in each instance by the defendant without protest. Whether or not there was a notation on the checks or any of them that they were for salary does not appear. The checks are not in evidence. There is an exhibit in evidence showing the withdrawals of the plaintiff from the partnership. These withdrawals are not uniform in amount but from March 1949 a large percentage of them are in the amount of $125 each. The evidence in this respect is far from conclusive but it together with the reasonable inferences to be drawn therefrom appears to preponderate in favor of plaintiff.

The further steps in the accounting herein, if in truth on the record made an accounting may be had, depend largely upon analysis and application of substantially noncontroverted but highly inconclusive facts, under appropriate legal principles, to the controlling provisions of the partnership agreement.

The period involved for the purposes of accounting extends from July 14, 1947, to January 31, 1951. Early in February 1951, the plaintiff withdrew from the partnership and there appears no disagreement on the proposition that his rights in the partnership are to be ascertained with relation to the conduct of the partnership and its condition as of January 31, 1951.

The district court found and the record sustains a finding that up to and including September 30, 1949, the plaintiff had paid and was entitled to have credited on his purchase of interest in the partnership the sum of $3,492.40. Some question was raised about this on the trial but the plaintiff accepts it as correct and a written acknowledgment of it by the defendant appears in the bill of exceptions. The record does not disclose whether or not this amount was ever withdrawn from the partnership as payment by plaintiff to defendant. Incidentally, and of course, if it remains among the funds and assets of the partnership, the defendant has the right of withdrawal and for accounting purposes it may not be regarded as a part of the assets of the partnership.

Just how this amount was arrived at does not authentically appear. This item, as is true of all items ultimately arrived at in the accounting by the district court and which are, if possible, to be ultimately arrived at here, has been and must be arrived at on the basis of an analysis of exhibits prepared by an accountant from data presented to him by the defendant, the partnership agreement, certain oral evidence as to value of physical property, the matter of salaries of plaintiff and defendant, and the matter of rent for the premises occupied by the partnership. None of the data which was used by the accountant in his preparation of exhibits was presented to the court for consideration.

Some of the exhibits are duplicated in the bill of exceptions and where that appears, for the purpose of discussion, only one will be referred to.

Exhibit 5 is an operating statement for the year ending ...