Barnes v. Pearson Termite and Pest Control, Inc., 80-164

• Decision Date: 01 December 1980
• Docket Number: No. 80-164,80-164
• Citation: 271 Ark. 251,608 S.W.2d 19
• Parties: Gerald D. BARNES, Appellant v. PEARSON TERMITE AND PEST CONTROL, INC., and Elmer T. Pearson, Individually, Appellees.
• Court: Arkansas Supreme Court

Page 19

608 S.W.2d 19

271 Ark. 251

Gerald D. BARNES, Appellant v. PEARSON TERMITE AND PEST CONTROL, INC., and Elmer T Pearson, Individually, Appellees.

No. 80-164.

Supreme Court of Arkansas.

Dec. 1, 1980.

Herby Branscum, Jr., Perryville, for appellant.

Joe Cambiano, Morrilton, for appellees.

HOLT, Justice.

These parties were previously before this court in Barnes v. Pearson Termite and Pest Control, Inc., 266 Ark. 635, 587 S.W.2d 823 (1979). The facts leading up to this appeal are set out fully in that case. Briefly, the parties had been in business together; when Barnes became ill, Pearson terminated the corporation and started his own business. Upon suit by Barnes for his share of the profits, the chancellor found the corporation was dissolved as of November 1, 1976, entering his order on June 1, 1977, that each receive 1/2 of the accounts or customers of the corporation. We affirmed.

During the pendency of that appeal, appellant filed a petition which forms the basis of the present appeal, alleging he had learned since June 1, 1977, that appellee had failed to properly divide some 83 business accounts. He requested the court to order an accounting and division of the funds received by appellee on these accounts since June 1, 1977. Appellee answered, denying the allegations, asserting, inter alia, that he had not failed to disclose the accounts and he had properly received them in the division of their assets. The chancellor appointed a master to examine the disputed accounts. Thereafter, following our decision, the chancellor ordered the accounting by the master to continue in order to determine if the accounts were acquired prior to or after November 1, 1976. The appellant then amended his petition to include a request for a bill of review of the decree, alleging the evidence as to the accounts was not known by him nor discoverable at the time of the first trial. The chancellor had a hearing on appellee's motion to dismiss. No testimony was taken, both attorneys merely arguing the cause to the court. At that hearing the chancellor had before him some 83 accounts introduced by the appellee, who observes that the chancellor, after looking at them, apparently decided no further testimony was necessary. These exhibits are not abstracted. It appears the report of the master was not considered. The chancellor indicated the basis for his dismissal of appellant's petition was our decision which recognized the chancellor's determination that...