Glant's Estate, In re, No. 35300

CourtUnited States State Supreme Court of Washington
Writing for the CourtOTT; WEAVER
Citation356 P.2d 707,57 Wn.2d 309
Docket NumberNo. 35300
Decision Date09 November 1960
PartiesIn the Matter of the ESTATE of Samuel GLANT, Deceased.

Page 309

57 Wn.2d 309
356 P.2d 707
In the Matter of the ESTATE of Samuel GLANT, Deceased.
No. 35300.
Supreme Court of Washington, Department 2.
Nov. 9, 1960.

Page 310

[356 P.2d 708] Earl A. Phillips, Malcolm J. Villesvik, Seattle, for appellant.

Riddell, Riddell & Williams, Seattle, for respondent.

OTT, Judge.

Samuel Glant, at the time of his death, owned a 22.54% interest in the Pacific Iron and Metal Company, a partnership which had been engaged in the waste materials business for a period exceeding thirty-eight years. By the terms of his will, Fay Phyllis Glant, his widow, was bequeathed a 7.51% interest in the company. Pursuant to RCW 11.64.030, the surviving partners petitioned the court to fix the price and determine the terms of sale of the interest bequeathed to Mrs. Glant, in accordance with the purchase preference rights afforded surviving partners by the statute.

A pretrial conference was held which resulted in an order being entered setting out the admitted facts and defining the items of dispute. At the hearing upon the petition, the court fixed the total value of the partnership at $562,370.87, and computed the widow's 7.51% interest at $39,129.90. Because the widow elected to receive interest on the value

Page 311

of her share from January 1, 1959, to the date of the judgment (rather than share in the profits or losses of the partnership during the settlement period), she was awarded the sum of $1,239.11, or a total payment of $40,369.01.

The court fixed the terms for payment of the purchase price as follows: $10,369.01 down payment, and the sums of $10,000 on or before July 10th of 1960, 1961, and 1962, with interest on the deferred balance payable quarterly at the rate of 5% per annum. The surviving partners were to execute an installment note, jointly and severally, and, upon the widow's accepting the terms of the sale, she was to transfer her interest in the partnership to them.

The partnership was indebted to its bank in the sum of $210,000, being the unpaid balance of an unsecured loan in the original amount of $260,000. As a further condition of the purchase, the surviving partners were to execute a renewal note to the bank, and the estate of Samuel Glant released of its liability upon the partnership indebtedness.

[356 P.2d 709] Findings of fact, conclusions of law, and judgment were entered. The widow appeals, and asserts eight assignments of error.

By assignment No. 1, the appellant urges that the court erred in departing from the pretrial order and allowing proof of an omitted item, referred to in the record as the Umatilla transaction, which reduced the net worth of the partnership by $22,797.36. It is the appellant's contention that she was 'deprived * * * of a fair trial and prejudiced * * * by surprise inclusion of a new issue.' The pretrial order expressly permitted unlisted exhibits to be admitted at the time of trial where good cause was shown, and also provided that 'this order shall not be amended, except by order of the court * * * or to prevent manifest injustice.'

The record discloses that the Umatilla transaction was partnership business and an allowable item to reduce the net worth of the partnership, also that neither party was aware of the fact that it had been inadvertently omitted by the partnership's accountants until after the pretrial order had been entered and the petition came on for hearing. Although

Page 312

appellant objected to the admission of proof of this transaction, she did not claim surprise and move for a continuance, nor did she make an offer of proof to establish the invalidity of the item.

The office of the pretrial conference is to expedite the final determination of the issues being litigated. Its use is not to operate as a barrier to the presentation of material facts at the trial, which were not considered at the pretrial conference because they were mutually unknown, and which became known to the parties subsequently.

We find no merit in appellant's first assignment of error.

Appellant's second assignment relates to the trial court's finding of fact that the partnership's good will, if any, had no value. The court found that

'* * * The reputation for integrity, fair dealing and competent management that has been built up through the years is personal to Julius Glant and Earle T. Glant and does not inhere in the partnership apart from them. There is no good will in the scrap business in the sense of a saleable asset.' (Italics ours.)

The good will of a going business is an element which inheres in it and cannot be separated from the whole. Stanton v. Zercher, 1918, 101 Wash. 383, 172 P. 559. There are many elements, defined in the decisions of this court and other jurisdictions, which comprise good will. Among these are continuity of name, location, reputation for honesty and fair dealing, individual talents and...

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14 practice notes
  • Sorensen v. Sorensen, No. 870102-CA
    • United States
    • Court of Appeals of Utah
    • February 10, 1989
    ...Fleege, 588 P.2d at 1138. But the case it cites as authority for the elements engendering goodwill, In re Estate of Glant, 57 Wash.2d 309, 356 P.2d 707, 709 (1960), involved Pacific Iron and Metal Company, a business partnership, and referred only to "reputation for honesty and fair 4 ......
  • Porter v. Porter, No. 40A01-8704-CV-00092
    • United States
    • Indiana Court of Appeals of Indiana
    • July 27, 1988
    ...of name, location, reputation for honest and fair dealing, and individual talent and ability. In re. Estate of Glant, 57 Wash.2d 309, 356 P.2d 707 * * * * * * As the Court of Appeals pointed out, while the goodwill of a professional practice may not be readily marketable and the determinati......
  • Stoumbos v. Kilimnik, Nos. 91-35524
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 9, 1993
    ...and many others. Good will is an intangible element that inheres in the value of a going business. In re Estate of Glant, 57 Wash.2d 309, 356 P.2d 707, 709 The bankruptcy court heard testimony that AAM had no going concern value in the fall of 1985. Ralph Arnold testified that the business ......
  • Swann v. Mitchell, No. 61809
    • United States
    • Florida Supreme Court
    • July 14, 1983
    ...Freeling v. Wood, 361 P.2d 1061 (Okl.1961); Buck v. Mueller, 221 Or. 271, 351 P.2d 61 (1960); In re Estate of Glant, 57 Wash.2d 309, 356 P.2d 707 (1960); Copland v. Wisconsin Department of Taxation, 16 Wis.2d 543, 114 N.W.2d 858 (1962). Accordingly, goodwill should be recognized as an asset......
  • Request a trial to view additional results
14 cases
  • Sorensen v. Sorensen, No. 870102-CA
    • United States
    • Court of Appeals of Utah
    • February 10, 1989
    ...Fleege, 588 P.2d at 1138. But the case it cites as authority for the elements engendering goodwill, In re Estate of Glant, 57 Wash.2d 309, 356 P.2d 707, 709 (1960), involved Pacific Iron and Metal Company, a business partnership, and referred only to "reputation for honesty and fair 4 ......
  • Porter v. Porter, No. 40A01-8704-CV-00092
    • United States
    • Indiana Court of Appeals of Indiana
    • July 27, 1988
    ...of name, location, reputation for honest and fair dealing, and individual talent and ability. In re. Estate of Glant, 57 Wash.2d 309, 356 P.2d 707 * * * * * * As the Court of Appeals pointed out, while the goodwill of a professional practice may not be readily marketable and the determinati......
  • Stoumbos v. Kilimnik, Nos. 91-35524
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 9, 1993
    ...and many others. Good will is an intangible element that inheres in the value of a going business. In re Estate of Glant, 57 Wash.2d 309, 356 P.2d 707, 709 The bankruptcy court heard testimony that AAM had no going concern value in the fall of 1985. Ralph Arnold testified that the business ......
  • Swann v. Mitchell, No. 61809
    • United States
    • Florida Supreme Court
    • July 14, 1983
    ...Freeling v. Wood, 361 P.2d 1061 (Okl.1961); Buck v. Mueller, 221 Or. 271, 351 P.2d 61 (1960); In re Estate of Glant, 57 Wash.2d 309, 356 P.2d 707 (1960); Copland v. Wisconsin Department of Taxation, 16 Wis.2d 543, 114 N.W.2d 858 (1962). Accordingly, goodwill should be recognized as an asset......
  • Request a trial to view additional results

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