Cooper v. Woodward

• Decision Date: 06 February 1922
• Docket Number: 9975.
• Citation: 204 P. 336,71 Colo. 90
• Parties: COOPER v. WOODWARD.
• Court: Colorado Supreme Court

204 P. 336

71 Colo. 90

COOPER v. WOODWARD.

No. 9975.

Supreme Court of Colorado

February 6, 1922

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by Mrs. O. D. Woodward against Charles J. Cooper. Judgment for plaintiff, and defendant brings error.

Affirmed.

Gillette & Clark, of Denver, for plaintiff in error.

J. W Kelley, of Denver, for defendant in error.

BURKE J.

Plaintiff in error was defendant, and defendant in error was plaintiff in the trial court, and they are hereinafter so designated.

Plaintiff brought suit for the recovery of $1,000 and interest alleged to be her share of undivided net profits on a certain written contract for the management of the Denham Theater in the city of Denver. Under this contract O. D. Woodward was employed by defendant to manage the theater and was to receive----

'one-half of the net profits of said theater after the payment of all expenses of the conduct thereof excepting rent, with the right to draw weekly on account of his share of said profits the sum of $50.00. It is understood and agreed that the said Woodward shall render to said Cooper on each week a statement of all the receipts and expenses of said theater for the last preceding week, and that settlements shall be had between said parties upon the 13th day of August, 1916, and upon each fourth Monday thereafter for the business of the four weeks last preceding such settlement. It is agreed that upon each said settlement the $50.00 per week drawn by said Woodward on account shall be charged against his one-half of the net profits, and that if upon any such settlement one-half the net profits shall not be as great as the amounts by said Woodward so drawn the difference shall be adjusted as soon as the net profits will permit, upon future settlements, it being the meaning and intent of the parties that said Woodward shall receive as full compensation one-half of said net profits with a guarantee of $50.00 per week. It is agreed that, if said business is not successful, said Cooper may cancel this contract at any time upon giving two weeks' notice thereof to said Woodward, and at the end of said two weeks said Cooper shall pay to said Woodward the difference between the total amount by said Woodward then received under this contract and the sum of $500, it being the agreement of the parties that said Woodward shall, in any event, and regardless of the length of time the said theater shall be operated, receive at least the sum of $500. * * * It is further agreed that all season tickets sold and outstanding prior to July 7, 1916, for performances thereafter at the said Denham Theater shall be honored at any performances thereafter given, and that these said season tickets will not be taken into account in considering the receipts of the said business after the said July 16, 1916, but it is especially provided that this arrangement shall not extend to season tickets in any total sum above the sum of $1,474.'

This contract was assigned by O. D. Woodward to his wife, the plaintiff. The assignment is not in dispute.

The theater was operated accordingly for approximately eleven months and until the contract was terminated on June 9 by defendant giving the two weeks' notice provided for therein. In the management thereof O. D. Woodward represented plaintiff and transacted all business for her. At the close of the period he claimed a balance due plaintiff of $1,000 and made out a check for the amount which defendant refused to sign. Due demand was thereupon made, and upon refusal plaintiff brought this suit. The cause was tried to a jury, which returned a verdict for plaintiff in the sum of $1,016.56. To review the judgment entered thereon defendant sues out this writ.

The theater was operated at a profit for the first five months at a loss of $524.46 the sixth, at a profit of $789.05 the seventh, and at a loss for the remainder of the time. For the first five months settlements were made and profits divided as called for by the contract. From the profits of the seventh month the losses of the sixth were deducted and the balance divided, by check to defendant and credit to plaintiff on her overdraft. For ten months $50 a month, or a total of $550, was credited to a so-called 'reserve account,' and not included in the estimates. This 'reserve account'...