Cook v. Wilkie

• Decision Date: 14 April 1967
• Docket Number: No. 36347,36347
• Citation: 181 Neb. 596,150 N.W.2d 124
• Parties: Dorothy L. COOK and Charles H. Cook, Wife and Husband, Appellees, v. W. Irving WILKIE, Appellant.
• Court: Nebraska Supreme Court

Page 124

150 N.W.2d 124

181 Neb. 596

Dorothy L. COOK and Charles H. Cook, Wife and Husband, Appellees, v. W. Irving WILKIE, Appellant.

No. 36347.

Supreme Court of Nebraska.

April 14, 1967.

Syllabus by the Court

1. A proper basis for equity jurisdiction is a suit for an accounting, where both parties asked for a determination of the amount due resulting from a large number of interrelating transactions taking place over a period of many years and where both parties asked for equitable relief.

2. The basis for equity jurisdiction in an action for an accounting is the inadequacy of the remedy at law.

3. When evidence on material questions of fact is in irreconcilable conflict this court will consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite.

4. The interpretation given a contract by the parties themselves while engaged in the performance of it is one of the best indications of the true intent of the contract and ordinarily such a construction should be enforced.

Kartman & Fike, Omaha, for appellant.

Kennedy, Holland, DeLacy & Svoboda, Thomas R. Burke, Omaha, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

WHITE, Chief Justice.

Stripped of nonessentials, this is an accounting suit to determine the date of payment and the amounts due plaintiff, Dorothy L. Cook, from her father, W. Irving Wilkie, as the result of an agreement between the parties in 1953. Defendant is in the real estate business and was interested in the purchase and sale of a tract of land near Seventy-second and Dodge Streets in Omaha, Nebraska. Plaintiff's version of the original agreement in 1953 was that the defendant was to make a gift to her of $10,000; purchase a one-fourth interest with this money in plaintiff's name in the partnership of Pirruccello and Company, which was buying the property at Seventy-second and Dodge Streets; she was to deliver the profits from the sales of the property to the defendant; and from the proceeds, less expenses and income tax, defendant would set up a trust fund payable to plaintiff when her daughter Susan reached the age of 18 in April 1965. Defendant's version, which we will analyze later, was to the effect that he was to keep the profits and use them as he saw fit; that after the payment of expenses and income taxes, the profits from the sales were to be loaned to him; and that they were repayable to the plaintiff as a claim against his estate after his death, except for a modification of the agreement made after 1953 by which he was to pay for the college expenses of plaintiff's two children.

The evidence is undisputed that the gift of $10,000 was made and a gift tax return filed; that with this money the one-fourth interest in plaintiff's name in the partnership was purchased; that the property at Seventy-second and Dodge Streets was purchased; that the property was sold in various sales over about a 10-year period; that plaintiff signed all of the necessary and numerous papers and documents for completing these transactions; and that she delivered the proceeds to the defendant. Each year the defendant would have the income tax return prepared for the plaintiff and her husband and would pay the necessary taxes to plaintiff.

The trial court found in favor of the plaintiff and entered judgment in the sum of $99,285.91 against the defendant. We affirm the judgment.

Although the theories discussed in the briefs are numerous and the record is voluminous, the issues in this case under the pleadings, admissions of fact, and the stipulation entered herein, are narrow. In his answer, defendant admits the gift of $10,000, admits the ownership of the plaintiff in the partnership and property involved, admits receiving and owing money to plaintiff, and specifically alleges, '* * * that after deducting such sums received by plaintiff directly or for her benefit there remains a balance due plaintiff, subject to the terms of the agreement between plaintiff and defendant as hereinafter set forth, of $86,501.39.'

By his answer, defendant further alleges he was to have the use of these funds during his life and that they were payable to plaintiff on his death, with the exception of the payment of college expenses of plaintiff's two children. Defendant affirmatively asks that, 'a determination be made of the sums due plaintiff, Dorothy L. Cook; that said sums be decreed payable to Dorothy L. Cook upon the death of defendant, * * *.'

In the defendant's answer to requests for admissions he specifically admits, 'that the amount due Dorothy L. Cook from W. Irving Wilkie is $100,549.44,' except that said amount is subject to correction by virtue of small amounts retained by Dorothy L. Cook, the exact amount of which were not known by the defendant at the time.

The issue as to the amounts due the plaintiff was further narrowed by a stipulation filed in the case and introduced in evidence by agreement at the trial. This stipulation, prepared by certified public accountants, showed a total of $114,361.67 distributed to defendant by plaintiff, subject to credits for income taxes and expenses in the sum of $25,325.76 paid by the defendant, leaving a net sum due plaintiff of $89,035.91. This stipulation specifically recited that it left unreasolved three items of $250, $10,000, and $2,534.52, which will be discussed later in this opinion.

Much of the discussion in the briefs is devoted to the nature of the relationship between the plaintiff and defendant as to whether there was a trust or a debtorcreditor relationship. As we see it, in light of the pleadings, undisputed facts, and admissions of the defendant, it is unnecessary to resolve this question. As defendant states in his brief, the recovery of the money itself is not the true issue, 'but rather the time for payment of the money due is the real substance of this action, and basically, that is all that was tried.'

The trial court, having heard and seen the witnesses, resolved this question in favor of the plaintiff, and we agree. Plaintiff's testimony, starting with the inception of the transactions involved, was clear, direct, and unequivocal to the effect that these sums were payable to her when her daughter Susan reached the age of 18 in April 1965. For a period of about 10 years, until April 1963, plaintiff unreservedly signed all papers and documents and endorsed all checks necessary to implement the agreement. Her testimony, undenied by the defendant, is that defendant repu diated the entire agreement after getting her to sign the income tax return on April 15, 1963, which repudiation precipitated this litigation. The defendant's testimony on the other hand, is evasive, uncertain, and contradictory. He admits the gift of $10,000, the purchase for the plaintiff of the partnership interest in the property, and that he had no interest in the property and that it belonged entirely to her. But he testified that originally in 1953 the profits or proceeds, after the payment of income taxes and expenses, were to be given to him. His exact testimony is, 'that the balance of the money I was to get and I was to keep.' He further testified: 'Q. Was she to ever receive that money in any way? A. There was positive understanding to that and there was no understanding that she was to receive any of it in the original agreement.' Later, on direct examination, he testified: 'She wasn't to give me the money out of the proceeds of the sales of these properties, she was to loan me the money, that was the original agreement, and if she would have given it to me, we would have been in a difficult situation again as to the filing of the gift returns, and it wasn't to be my money, it was a loan.' It is significant that in this testimony there is no mention of the money being payable on defendant's death. Then, in the last part of the defendant's direct examination, in response to specific questions, he did testify that she was to receive the profits on his death and that was pary of the original agreement. Earlier in his direct testimony defen...