Bengston v. Shain
| Decision Date | 14 April 1953 |
| Docket Number | No. 32288,32288 |
| Citation | 255 P.2d 892,42 Wn.2d 404 |
| Parties | BENGSTON, v. SHAIN et al. |
| Court | Washington Supreme Court |
George Olson and George F. Ward, Seattle, for appellant.
Clarke, Stone & Hoover, Seattle, for respondents.
Plaintiff commenced action against defendants alleging that, on August 1, 1950, he and they entered into an oral agreement of partnership for the operation of a tavern, under the terms of which Plesko would have a one-half interest, and he and Shain would each have a one-quarter interest; that later the defendants informed him that they would no longer recognize his interest in the tavern. Plaintiff elected to dissolve the partnership and prayed for an accounting. He appeals from a judgment holding that he does not have any partnership interest in the business, and allowing him the sum of $786.44 in full discharge of all claims he may have against defendant Shain.
Bengston commenced to work for Shain during February, 1948, in Shain's pawnshop in Seattle, as a watchmaker and clerk. Shain had previously operated a tavern and Plesko had been his bartender. In July of 1950 Mr. and Mrs. Plesko came into the pawnshop and asked Shain if he would be interested in buying a tavern. There is a conflict in the testimony as to what occurred during that conversation. Bengston testified:
* * *
Bengston did not know anything about taverns. He had never worked in one. He took no part in any of the negotiations for the purchase of the tavern. He said that he heard Plesko and Shain state that they were going to pay $38,000 for the tavern. He did not know how much they were going to pay down. He testified: 'I was not concerned about how much it was going to cost them.' He never made any demand for an accounting while he worked at the tavern. He admitted that, in his negotiations with Shain, nothing was said about any possible losses.
Shain's version of the transaction was somewhat different. It was that Mr. and Mrs. Plesko came into the pawnshop and asked him if he would become their partner in a tavern; that Bengston was five feet away. He testified: 'I said, 'Now, would it be alright with you, Chuck, if Joe would work in my place because I don't want to work in the tavern. I don't mind investing my money, but I don't want to work in it." He gave as his reason that his feet troubled him. Plesko agreed to the arrangement.
Shain testified further:
Plesko testified that Shain's version of the conversation was correct. The trial court admitted in evidence an unsigned carbon copy of a partnership agreement betwen Plesko and Shain.
At any rate, Plesko put in $16,000 and Shain, $6,000. Shain sent Bengston to the office of Mr. Stone (Plesko's attorney) to make application for a liquor license. The license was issued to Plesko, Bengston and Shain. Shain's explanation of this was that it was to avoid having Bengston join the union, and that the rough element would respect him more if they saw his name on the license.
Bengston worked at the pawnshop from 10:15 to 4:00, for which he received a salary of $75 per week (the same as before) and at the tavern from 6:00 p. m. to 1:00 a. m as bartender and manager. He did not draw any money from the tavern. Shain's explanation of this was that he asked Bengston to loan him what Bengston had coming, in order to help Shain equal his share with Plesko; that Bengston agreed; that Bengston had loaned Shain money before.
Dave L. Allan, Jr., chief of the services branch of the O. P. S. in Seattle, testified that he was in the pawnshop during the fall of 1950 and asked Shain if Bengston were his partner in the tavern, and that Shain replied, 'No, he is working for half of my share of the profit'; that Bengston was within hearing distance and made no reply.
Mrs. Bengston testified concerning a conversation with Shain about two months after Bengston started to work in the tavern, in which she told him that she wanted a new car; that Shain replied, 'Why don't you wait and when Joe's share in the tavern is paid off, you will have that money and then you will have the interest from the money that the tavern will be making after the contract is paid off, and you will be able to get all that stuff then.'
There was also introduced in evidence plaintiff's Exhibit 1, which was designated, 'Audit Report--Year 1950' for the Scenic Tavern. The report was prepared by Sam Blockoff, a licensed public accountant, who testified that he set up the capital accounts pursuant to the instructions of Plesko and Shain. The report contains the following:
"Liabilities & Net Worth
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Current Liabilities
--------------------
Tavern Contract $16,000.00
Bank Note 2,500.00
Accrued Taxes 777.94
Accrued Expenses 114.54
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Total Liabilities 19,392.48
Net Worth
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Charles Plesko--Capital 16,972.87
Sam Shain--Capital 6,748.94
Clarence Bengston--Capital 748.94
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Total Net Worth 24,470.75
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Total Liabilities & Net Worth 43,863.23
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"Scenic Tavern
Reconciliation of Partners Net Worth
------------------------------------
Charles Plesko
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Investment in Tavern--August 15, 1950. 16,000.00
Additional Investment in October, 1950. 900.00
Add 1/2 of Net Profit for 1950. 1,572.87
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18,472.87
Less Drawings for 1950. 1,500.00
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Net Worth--December 31, 1950. 16,972.87
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* * * * * * * * * * *
Sam Shain:
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Investment in Tavern --August 15, 1950. 6,000.00
Additional Investment in October 1950. 412.50
Additional Investment in December, 1950. 300.00
Add 1/4 of Net Profit for 1950. 786.44
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7,498.94
Less Drawings for 1950. 750.00
---------------
Net Worth--December 31, 1950. 6,748.94
--------------
* * * * * * * * * * *
Clarence Bengston:
------------------
Investment in Tavern in October, 1950 412.50
Additional Investment in December, 1950. 300.00
Add 1/4 of Net Profit for 1950. 786.44
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1,498.94
Drawings for 1950. 750.00
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Net Worth--December 31, 1950. 748.94"
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