Dallas Fountain & Fixture Co. v. Hill, 15533

• Decision Date: 11 December 1959
• Docket Number: No. 15533,15533
• Citation: 330 S.W.2d 648
• Parties: DALLAS FOUNTAIN AND FIXTURE COMPANY, Inc., Appellant, v. Don L. HILL, Appellee.
• Court: Texas Court of Appeals

Page 648

330 S.W.2d 648

DALLAS FOUNTAIN AND FIXTURE COMPANY, Inc., Appellant, v. Don L. HILL, Appellee.

No. 15533.

Court of Civil Appeals of Texas, Dallas.

Dec. 11, 1959.

Rehearing Denied Jan. 8, 1960.

Clair F. Achenbach, Dallas, for appellant.

Harris, Anderson, Henley & Rhodes, William B. Henley, Dallas, for appellee.

YOUNG, Justice.

Appellee's suit against Dallas Fountain and Fixture Company, Inc. was for a percentage of net profits allegedly due over a three year period under an agreement on either a partnership or employment basis, the fixture company denying liability and filing cross-action. On answers of the jury to special issues, judgment was rendered for appellee in the sum of $9,229.61, legal interest and costs, inclusive of a $1,600 auditor's fee from which this appeal is taken.

The initial agreement comprehended the procurement by Hill of contracts involving the installation of kitchen equipment for processing and completion by the fixture company on a percentage basis; claimed by the latter as 30% of the net profits, by plaintiff as 33 1/3%; the suit being for his claimed portion of the profits after taking into consideration all expenses, losses and costs of completing contracts in progress when plaintiff was refused his claim of profits after demand. He also sued for reasonable attorney's fee which was stipulated at 20% of the net recovery. Defendant's answer contained exceptions, denial and cross-action for losses on certain jobs which it alleged was due to negligence and miscalculations of Hill and chargeable directly to him amounting to $8,683.05 (after deduction of Hill's net percentage), plus the sum of $1,170.65 representing value to defendant of 'certain records, plans and specifications, purchase orders and invoices' taken away by Hill without authority upon termination of the employment; a total cross-action of $9,853.70. Admittedly, as part of the basic agreement, Hill was to draw $70 per week over the period to be charged against net profits, if any.

Because of disputes and disagreements as to gross amounts received on various jobs and amount of expenses and losses to be charged in such connection, an auditor was appointed to examine the company books and records, he making original and supplemental reports brought forward as original exhibits. The auditor's full report was accepted by the parties as correct, save for an item which appellee does not stress; it being stipulated that such report truly reflected the contents of the fixture company's books and records pertaining to the jobs and contracts in question.

In substance, the jury findings were (1) that the percentage of the net profits to Hill as agreed upon between the parties was 30%; (2) total of net profits on all the jobs sold by Hill was $55,196.18; (3) total net profits on the Clinton-Sherman Air Force Base, Reese Air Force Base Hospital, Mexia State School jobs were $15,169.03; (4) that Don L. Hill sold the Bay Pine Florida Hospital job; (5) the net profit on said job was $7,348.99; and (6) that Don L. Hill made demand for payment of commissions more than 30 days prior to filing of suit (June 14, 1956).

We have carefully examined appellant's several points of appeal and same are viewed as without merit; our conclusions to such effect will now be stated seriatim. ¹

(1) In point one, appellant complains of the Court's failure to require plaintiff to answer material questions propounded in a deposition; that in consequence there was an admission relative to his receipt of a certain $25 check and 'evidence of appellee's gross infidelity and a bar to recovery', etc. While the court ordered such deposition set up as part of the record, the 'material questions' do not appear to have been offered in evidence. Further, no issue is raised in the case as presented of 'gross infidelity'; rendering immaterial the subject matter of this point.

(2) Appellant's point two and the statement thereunder refers to various alleged deficiencies of pleading and proof; and is viewed as too general and multifarious for consideration under Rule 418 Texas Rules of Civil Procedure. No complaint is made of the jury verdict as not having support in the auditor's report. Neither was there any objection to plaintiff's evidence during the trial as not supported by the pleading; and where a jury verdict is within the scope of pleading, a judgment in conformity therewith will not be disturbed. Largent v. Etheridge, Tex.Civ.App., 13 S.W.2d 974.

(3) Points three and four relate to socalled admissions of plaintiff as further proof of lack of fidelity of appellee, which is in nowise made an issue in appellant's cross-action. Further, as stated by appellee's reply to point three, 'there is no evidence of any commission arrangement which would bar recovery by appellee as a matter of law.' We agree with appellee's statement in reply to point four to the same effect.

Appellee likewise correctly states that point five of the fixture company is too vague, indefinite and general for appellate consideration. The record, by which we are bound, nowhere discloses that Judge Davenport 'refused to rule' on the matters complained of. Point six is also multifarious...