Benson v. Rozzelle Rozzelle v. Third Judicial District Court In And for Salt Lake County

• Decision Date: 31 December 1934
• Docket Number: 5624,5561
• Citation: 39 P.2d 1113,85 Utah 582
• Court: Utah Supreme Court
• Parties: BENSON v. ROZZELLE et al. ROZZELLE et al. v. THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY et al

39 P.2d 1113

85 Utah 582

BENSON v. ROZZELLE et al. ROZZELLE et al. v. THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY et al

Nos. 5624, 5561

Supreme Court of Utah

December 31, 1934

Rehearing Denied February 13, 1935.

Appeal from District Court, Third District, Salt Lake County Herbert M. Schiller, Judge.

Suit by Dorothy C. Benson against Joe W. Rozzelle and another. From an adverse judgment, defendants appeal. Original proceeding by Joe W. Rozzelle and another against the Third Judicial District Court in and for Salt Lake County and others, for a writ of review praying annulment of an order or decree. On motions to dismiss the appeal and to quash the writ of review.

Motion to dismiss the appeal denied, judgment reversed; motion to quash the writ of review denied.

E. A Walton, of Salt Lake City, for appellants.

Romney & Nelson and R. J. Hogan, all of Salt Lake City, for respondent.

MOFFAT Justice. STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

MOFFAT, Justice.

This matter comes to this court upon two separate proceedings. There is an original proceeding upon which a writ of review was issued out of this court upon petition praying annulment of an order or decree of the district court of the Third judicial district of the state of Utah, county of Salt Lake, in the case of Dorothy C. Benson, plaintiff, against Joe W. Rozzelle and K. W. Yeates, defendants, whereby the trial court had ordered the defendants to account to the plaintiff. The return made in pursuance of the writ contains the judgment roll and a bill of exceptions duly settled. The appeal involves the same record. The appeal was perfected after the writ of certiorari was issued out of this court, lest the time for appealing should expire, before the matter was determined upon the writ, and in the event the determination upon the writ resulted in a final denial thereof, and the judgment of dissolution of the alleged partnership should become final, thereby cutting off the right of appeal and defendants be left with no remedy. The complete record being in this court, it was stipulated that the whole matter might be heard and submitted to the court at one time, and that was done.

There are two controlling issues presented in these proceedings. One is presented on the appeal to the effect that there is no evidence whatever of a three-party partnership between the plaintiff and the defendants, and one upon the application for the writ of review to the effect that jurisdiction is lacking on the part of the trial court to enter judgment or make an order or decree requiring the defendants to account to the plaintiff with respect to the alleged three-party partnership.

The record discloses that Dorothy C. Benson, the plaintiff, filed her complaint in the district court on the 20th day of April, 1933, alleging in substance that she entered into a partnership with the defendants on or about June 30, 1930; that they were to share in the business one-eighth to the plaintiff, three-eighths to the defendant K. W. Yeates, and four-eighths to the defendant Joe W. Rozzelle; that the partnership was to engage in a general gasoline and oil distributing business; that at the same time the defendant Rozelle took possession of all the property and business and ever since said date has operated the business under the name of Joe W. Rozelle; that he has received and disbursed moneys; that the defendants have refused plaintiff access to the books and records, have refused to permit plaintiff to participate in the business at all, and have refused and still refuse to account to her. Among the items of relief prayed for are: Dissolution of the alleged partnership, appointment of a receiver, and that defendants be required to render an accounting.

After hearing the evidence, the trial court made findings of fact, conclusions of law, and entered a judgment of dissolution of the partnership, refused to appoint a receiver, and directed the defendants to render an accounting within fifteen days after the entry of the judgment of dissolution. Plaintiff had the burden of proving the existence of a partnership. If she failed in this, manifestly she was not entitled to any relief under the complaint filed, no matter what other rights she might assert or claims she might otherwise have against the defendants.

We have examined the record carefully and any and all evidence tending to support the issue presented by plaintiff's complaint. Before stating the evidence it may be well to indicate a difficulty presented to the trial court. A demurrer had been interposed seeking to require plaintiff to set forth whether the alleged partnership agreement was oral or in writing. The demurrer was overruled, but as the trial proceeded, the trial judge sought to secure a statement from plaintiff's counsel for purposes of enabling him to rule upon the admissibility of evidence, whether the plaintiff claimed the agreement of partnership to be in writing or oral. Counsel was apparently reluctant to make a committal as to either proposition, but finally said it was partly oral and partly written. There is no evidence of any oral agreement of partnership between the parties to the action, nor does it seem possible the plaintiff could maintain any such claim.

Richard M. Benson, husband of and agent and witness for plaintiff, was present at the signing of an agreement between the defendants Yeates and Rozzelle on the 30th day of June, 1930, at the time of the alleged formation of the partnership, and it would seem that if plaintiff was a partner from the beginning such relationship must be found in the written agreement itself or by evidence of some oral or written agreement establishing such relationship. He was asked about the conversation that took place on that occasion. He stated:

"I can't remember the exact conversation, but Mr. Rozzelle handed this partnership agreement to Mr. Yeates and asked him to read it over and Mr. Yeates read it over and said it was all right. Mr. Yeates then let me look it over and Mr. Yeates and Mr. Rozzelle signed the agreement."

"Q. Was there any other conversation at that time? A. No. I don't think there was any other conversation."

The agreement referred to and about which the witness Benson was testifying was received in evidence as "Exhibit 1" and reads as follows:

"This agreement entered into by and between K. W. Yeates, of Salt Lake City, Utah, first party, and Joe W. Rozzelle, second party, witnesseth:

"The parties hereto have entered into a copartnership for the purpose of distributing gasoline and oil upon the following terms and conditions.

"1. A storage tank is to be erected at Odell switch on the Bamberger Railroad on the property of the second party, of approximately twenty thousand gallons capacity, for gasoline distribution; additional tanks may be erected if the increase in business justifies it.

"2. The necessary equipment for the delivery of gasoline and oil is to be purchased.

"3. The partnership is formed primarily to deliver gasoline and oil to the members of the Utah Garage Mens Association; however, its activities are not confined to this distribution exclusively, and it may do a general gas and oil distribution.

"4. A bank account is to be opened at Walker Brothers Bank under the name of Joe W. Rozzelle and all moneys paid into the hands of either partner are to be deposited in said bank and paid out by check signed by Miss C. E. Johnson.

"5. Each of the parties hereto have other enterprises in which they are interested and engaged; until mutually agreed neither party is to draw a salary, nor is the second party to receive any rental for storage tank space, nor office rent until mutually agreed upon.

"6. Any contract for the delivery of oil and gas to the members of the Utah Garage Mens Association will be in the name of the second party; first party hereto to be a silent partner to this agreement, but is to share equally with the first party in all profits arising from said partnership, and to share equally in all losses suffered.

"7. All expenses are to be shared equally, the necessary books of account to be kept open for inspection at all times by either party hereto. All current accounts to be paid promptly in order to take advantage of any cash discounts.

"8. Dividends may be declared quarterly.

"9. The funds of this partnership are to be used exclusively for the benefit of the business.

"10. Second party now owns and operates five retail gasoline stations, said stations are to be supplied with gasoline by this co-partnership at the same terms as the members of the Utah Garage Mens Association, except that said second party's gasoline is not to be delivered C. O. D., but is to be paid for at regular semi-monthly intervals.

"11. Each of the parties hereto are to at all times work for the best interest of the partnership. It is to continue until mutually dissolved, and in case it becomes necessary to settle a dispute between the parties hereto, it is to be done by arbitration, the expense pertaining thereto to be shared equally by the parties hereto.

"Signed in duplicate this 30 day of June, 1930.

"[Signed] K. W. Yeates

"Party of the First Part

"[Signed] Joe W. Rozzelle

"Party of the Second Part."

The plaintiff claimed that she paid $ 375 into the partnership for the alleged one-eighth interest in the partnership. There is no evidence that such was done in so far as Rozzelle was concerned at the time of the formation of the partnership evidenced by the above agreement. As to that matter, Mr. Benson testified that to the best of his knowledge the $ 375 was paid to Mr. Yeates. How it was paid will appear from the testimony of Mr. Yeates.

Some months after...