Greusel v. Payne
| Decision Date | 17 November 1921 |
| Docket Number | 21335 |
| Citation | 185 N.W. 336,107 Neb. 84 |
| Parties | JOHN O. GREUSEL, APPELLEE, v. CHARLES T. PAYNE, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LEONARD A FLANSBURG, JUDGE. Affirmed.
AFFIRMED.
Fawcett & Mockett, F. V. Robinson and A. L. Chase, for appellant.
Bruce Fullerton and Reese & Stout, contra.
Heard before MORRISSEY, C.J., LETTON, DEAN and DAY, JJ.
This is a suit in equity for an accounting. In 1914 plaintiff and R J. Miller, under the firm name of Miller & Greusel, were engaged in the real estate business in Lincoln. It is alleged by plaintiff that, in the same year, the defendant became associated with himself and Miller, under an oral agreement of partnership, for the purpose of buying and selling real estate, mortgage securities, and the like. When, some time thereafter, plaintiff sought to effect a settlement with defendant, for his share of the profits in the business venture, he denied the existence of a partnership or that he was at all liable to plaintiff in any sum for any of the profits or the proceeds of any of the property in which plaintiff claimed the right to share. Defendant also asserted exclusive ownership of all real estate and all securities, approximating $ 20,000 in value, that are in controversy here and in which plaintiff contends that he owns a partnership interest. Upon defendant's refusal to account to plaintiff he began this action and recovered a judgment for $ 4,450.20, from which defendant appealed.
The weight of the evidence clearly establishes plaintiff's contention that an oral partnership agreement was entered into by the plaintiff, the defendant and Miller and that it carried on a successful and profitable real estate business. It appears that, under the agreement, defendant was to have as his share one-half of the net profits arising out of the business and that plaintiff and Miller were each to have one-fourth of the profits as their share, and that the losses, if any, were to be borne by the partners in the same pro rata proportion. It was shown that defendant was to collect all rents, interest and income, and account to the partners therefor, the parties having agreed that the real estate and mortgage securities and the like should be taken in defendant's name, for convenience in making transfers of the property. In case of a sale or exchange of such properties defendant was to make the necessary conveyances, or assignments, as the case might require, to the respective grantees or purchasers. It may be noted that the interest of Miller is not involved here, he having effected a settlement with defendant before this suit was begun.
Apparently to finance the new business venture, plaintiff and defendant and Miller, in May, 1914, borrowed $ 4,400 from a bank, for which they gave their joint and several note signed as individuals. With the money so obtained they purchased a 160-acre tract of land in Seward county and shortly thereafter exchanged the land for a Lincoln garage. Soon afterward the garage was exchanged for land in Scotts Bluff county and, as representing the difference in value, the partnership received a $ 2,000 mortgage on the garage. Later the Scotts Bluff land was exchanged for a 160-acre tract of land in Merrick county, and for the difference in value between the two properties the partnership received a $ 5,000 mortgage on certain Lincoln city property. A stock of merchandise, that was acquired by the partnership, was exchanged for a ten-acre orchard near Lincoln, upon which there was a $ 700 mortgage, and, to the end that a payment might be made on the property, an additional sum of $ 500 was borrowed from the same bank where the $ 4,400 was obtained, the three men again jointly executing a new note, which is in evidence, but in the principal sum of $ 4,990.20. It appears that all over $ 4,400, in the renewal note, represented unpaid interest and also the $ 500 newly borrowed. A second mortgage of $ 300 on the Hartley orchard was paid off and plaintiff paid to defendant $ 77.67 as his share of the mortgage obligation including interest. It appears that plaintiff and defendant from time to time each contributed money for partnership expenses and in payment of interest and the like. A course of partnership dealing is shown by six or seven checks that were drawn by plaintiff to defendant's order and collected by him and by him applied on partnership business. The check for $ 77.67, which represents plaintiff's one-fourth part of the $ 300 mortgage obligation, has already been noticed. Another check is for $ 33.80, payable to defendant, to apply on interest on the $ 4,400 note. Another is for $ 54.80 for the examination of an abstract of title to the garage property. A check for $ 50 is for plaintiff's one-fourth part of the $ 200 earnest money that was paid on the Seward county farm. Another for $ 30.84 represented one-fourth of the difference between the income and the expenses on one of the city properties that came into the hands of the partnership. A check for $ 5 by Greusel paid the water rent on the O street garage. Another for $ 22.74 represented plaintiff's payment of one-fourth of the interest that became due on the loan on the Merrick county land. This check was made payable by plaintiff to the owner of the loan or to his agent.
It plainly appears that the Hartley orchard of ten acres, of the net value of $ 3,300, and the Merrick county quarter-section of the net value of $ 12,500, were converted by defendant to his own use. He deeded the Merrick county land to his daughter, and the Hartley orchard was deeded to another, and in exchange therefor he took deeds to real estate that were executed in blank. Among other transactions it was shown that defendant collected the garage mortgage, which with interest amounted to $ 2,120. He collected also the mortgage on other Lincoln city property, amounting to $ 5,600, including interest, or a total of $ 7,720 that belonged to the partnership. With this money defendant paid $ 5,719.15 in satisfaction of the partnership debt to the bank. Of the interest charge on the principal debt, as hereinbefore noted, plaintiff had theretofore paid $ 33.80 to defendant to apply thereon. So that, after deducting the $ 33.80 so paid by plaintiff, there remained in the...
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