Gauthier v. Dickerson
| Decision Date | 30 October 1952 |
| Docket Number | No. 32173,32173 |
| Parties | GAUTHIER, v. DICKERSON et al. |
| Court | Washington Supreme Court |
Boardman Noland, Spokane, for appellant.
John J. Schiffner, Spokane, for respondents.
The appellant brought an action for an accounting. The respondents counter-claimed. The court dismissed the action at the close of appellant's case, and granted a motion of respondents to dismiss their counterclaim.
The substance of the complaint is that respondents employed appellant to serve them in their refrigeration equipment business as a mechanic and salesman in accordance with a written contract made a part thereof; that the compensation to be paid was a share of the net profits of the business; that the contract provided respondents should invoice all merchandise sold and delivered, as well as all service work performed and completed, and keep proper books of account so that costs and profits could be readily determined; that appellant performed services pursuant to the contract from March 1, 1945, to November 30, 1947; that respondents did not keep proper books, nor an accurate account of the costs and profits of the business, and failed to account to appellant for his share of the profits. There was no allegation in the complaint that appellant had made a demand for an accounting prior to the commencement of the action and that such demand had been refused. When the question was raised at the trial, the court allowed an amendment to be made and proof was submitted in support thereof. The complaint prayed for an order of the court requiring respondents to give a full accounting of all the business transactions had under the contract and for judgment for one half of the profits made, less sums already paid.
The answer of respondents consisted of admissions and denials, a copy of the contract, and a counterclaim for advances on commissions made to appellant in excess of his earnings to the extent of $197.28. The respondents requested a trial amendment increasing this item to $1,161.27.
Prior to the commencement of the action, appellant made a demand upon respondents for an accounting. He had received from respondents a series of what was denominated 'reports,' some 'invoices,' and a statement of 'debits and credits' covering the reports. Respondents regarded this data as an accounting and made no other response to the demand.
On August 9, 1949, appellant, through his attorney, informed respondents that the accounting they had rendered was not complete or satisfactory to him. Attention was called to the contract providing for the use of due diligence in invoicing for all work and services performed and completed and the keeping of proper books of account so that the costs and profits could be readily determined. The respondents were informed that appellant was not satisfied with the accounting with reference to certain specified contracts with customers. Request was made for an itemized cost accounting on such jobs and any others on which appellant had not received an accounting.
When the case was called for trial, there was a discussion between the trial judge and counsel with reference to whether the action was one to require respondents to render an accounting, or whether it was one for an accounting to be taken before a referee or the court. Counsel for appellant contended the action was to require respondents to render an accounting, but suggested that if the court considered one had been made he desired to show that it was not such as appellant was entitled to because of many inaccuracies therein and its incompleteness. The trial appears to have proceeded upon the theory that an accounting had been made by respondents. Appellant was permitted to submit evidence to show the accounting was incomplete, and incorrect in some respects.
At the close of the evidence submitted by appellant, the court decided that the action was one to secure an order of the court th...
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