Forbes v. Butler

• Decision Date: 07 June 1928
• Docket Number: 4639
• Citation: 275 P. 772,73 Utah 522
• Court: Utah Supreme Court
• Parties: FORBES v. BUTLER et al

275 P. 772

73 Utah 522

FORBES v. BUTLER et al

No. 4639

Supreme Court of Utah

June 7, 1928

Rehearing Denied December 21, 1928. Second Petition for Rehearing Denied March 27, 1929.

Appeal from District Court, Fifth District, Iron County; Thos. H Burton, Judge.

Suit by Raymond T. Forbes against William W. Butler and others. From the judgment, plaintiff appeals. Affirmed in part, and in part reversed, judgment modified, and cause remanded, with directions.

Fisher Harris and E. A. Walton, both of Salt Lake City, for appellant.

Sam Cline, of Milford, and Wilson & Barnes, of Salt Lake City for respondents.

GIDEON J. THURMAN, C. J., and CHERRY, STRAUP, and HANSEN, JJ., concur.

OPINION

GIDEON, J.

This case is here on a second appeal. The opinion of the court upon the former appeal is reported in 66 Utah 373, 242 P. 950. Reference is here made to that opinion for a statement of the facts in controversy.

The action was instituted on July 20, 1923. The purpose was to establish the existence of a joint venture between Forbes and Butler, and to secure an accounting of the profits of such venture. Issues were joined and a trial had in June, 1924. The trial court then found that there had been no joint venture and dismissed the action. The plaintiff appealed, and this court reversed the finding on the question of a joint venture, and established and confirmed the existence of such joint venture. This court concluded its opinion as follows:

"It is contended by his counsel that Butler incurred expenses in effecting a sale of the land to the extent of several thousand dollars. Whatever legitimate expenses were incurred in connection with the joint venture by either party to the contract will be, in the first instance, for the trial court to determine.

"It is therefore ordered that the agreement of joint venture between the plaintiff and defendant Butler referred to in the pleadings be, and is hereby, established and confirmed; that an accounting between the parties should be had for the purpose of determining the net profits, if any, resulting from the joint venture; that the cause be remanded to the trial court, with directions to proceed accordingly to determine such net profits, if any, after allowing Butler compensation commensurate with what he had been making, and, if net profits are found, to adjudge that each of the parties to said joint venture agreement be entitled to one-half thereof, and enter judgment accordingly. * * *"

From this court's mandate it thus appears that the trial court was required to take an accounting between the parties and to enter judgment in favor of the plaintiff for one-half of the net profits, if any, of such joint venture.

As indicated, the essence of the action originally was, first, to establish a joint venture, and, second, to secure an accounting of the profits. This court determined that a joint venture existed, and directed an accounting. Right or wrong the judgment of this court became the law of the case upon the issues actually determined, and is binding not only upon the parties to the proceeding, but upon both this court and the trial court. Words & Phrases, Second Series, page 37.

Subsequent to the filing of the remittitur from this court in the district court the defendants were permitted to amend their answer. In such amendment defendants alleged an abandonment of the joint venture on the part of plaintiff on or about January 15, 1923. The trial court then proceeded to take evidence, and declared an accounting between the parties. The court's findings are lengthy, and it is impracticable to state the substance of all of them here. The court found that the total commissions and interest collected by Butler on the sale of the land held under option, the subject-matter of the venture, was $ 10,123; that the total expenses incurred by Butler in the joint venture was $ 2,596.76; that the reasonable value of Butler's services in aid of the joint venture was $ 600 per month, and also that Butler had devoted services therein and thereto for a period of seven months. The court below fixed the amount of such reasonable compensation at $ 4,200. The sum of $ 100 interest was allowed Butler for money expended by him in promoting the interests of the joint venture. These amounts were deducted from the total commissions received which left the net profits, as the court found, to be divided between Forbes and Butler, $ 3,326.24. Judgment was entered against Butler and in favor of Forbes for one-half of that amount, to wit, $ 1,663.12, with legal interest from May 5, 1926.

This appeal is by plaintiff, and the assignments relate to the rulings of the court, allowing, as alleged, excessive amounts for expenses incurred and an excessive amount as reasonable compensation for services rendered by Butler in the promotion of the enterprise, and failure on the part of the trial court to allow interest to plaintiff from the dates upon which the commissions were received by Butler to the date of the judgment.

It appears from the testimony taken both upon the accounting and at the first hearing of this action that Butler obtained the option upon the real property without any assistance or suggestion upon the part of, and in fact without the knowledge of, appellant Forbes; that the first conversation had between Forbes and Butler respecting the sale of the land held under option was during the month of October, 1922; that Butler sought to interest Forbes in assisting him in handling the enterprise; that it was the understanding that Forbes should receive no salary; that Butler should receive compensation for his services. It likewise appears that all of the moneys expended in promoting the interests of the joint venture were advanced by Butler. It nowhere appears that Butler requested Forbes to advance any of that money; nor does it appear that Forbes ever offered or tendered the advancement of any money for use in advancing the interests of the enterprise. Forbes devoted little or no time, money, or effort in advancing, or in behalf of, the enterprise. The testimony of both parties is that Forbes was to keep the office at Cedar City and do the clerical work. He did devote some time to the interests of the enterprise during the months of November and December, 1922, and the early part of January, 1923. The extent of his efforts was very limited, however. After January 15, 1923, according to his own testimony, he neither advanced money nor gave time to the interests of the enterprise. The sale was finally consummated by Butler on or about June 5, 1923. During all of the time from the date of the option, to wit, September 10, 1922, until the end of February, 1923, and much of the time thereafter until June 5, 1923, Butler devoted his entire time and efforts to the consummation of the sale of the land held under option. It is shown without any dispute that during November and December, 1922, Forbes had other employment that required at least some of his time, and that after January 15, 1923, he had other employment and other interests which in the very nature of the employment and interests required his entire time and effort. Had the issues raised by the pleadings at the date of the first trial included the defense of abandonment of the enterprise by Forbes, a finding that there had been such abandonment would have had support in the evidence. The trial court, on the accounting, made a finding that Forbes had so abandoned the enterprise but based no judgment and decree upon such finding that Forbes was not entitled to participate in the profits of the venture. No appeal is taken from that part of the trial court's judgment on the accounting, hence the finding and the trial court's apparent view upon that question have no place in the record, and the question is not before us for determination. The essence of appellant's contention here is that the amounts credited to Butler are excessive and without support in the evidence. We have with some labor examined the testimony in the record before us respecting the claims of Butler as to his expenses. It must be conceded that the trial court was liberal in fixing the amount of such expenses. Butler had, however, given his opinion as to the expenses incurred and the money expended. The court did not in all cases allow Butler the full amounts that he claimed. The amounts allowed, considered in connection with the nature of the claimed expenditures and the object sought by such expenditures, in the way of hotel bills, etc., are not so exorbitant or beyond the probable amounts actually expended as to justify this court, in the face of the record, to disturb such findings. We have therefore concluded not to disturb the findings in any way as regards the expenses allowed and deducted from the amount of the commissions received by Butler. Neither Forbes nor Butler kept any books or record of the expenses incurred from day to day or at all. Nor were vouchers taken for payments made or for any of the amounts expended by Butler in promoting the interests of the joint venture. Butler had at different periods been engaged as a traveling salesman. He based his estimates for hotel bills and traveling expenses to some extent at least upon his experiences as a traveling salesman. In any event we find no reason to disturb the trial court's findings respecting the expenses of Butler while traveling in the interest of the enterprise.

The finding of the trial court that Butler was entitled to $ 600 per month for compensation for his services is vigorously assailed by appellant. In the accounting Butler was permitted to go far afield in determining what was a reasonable compensation for the services he had rendered. The court heard testimony as to salaries and...