Harris v. Thompson
| Decision Date | 07 February 1916 |
| Docket Number | 8483. |
| Citation | 156 P. 149,61 Colo. 87 |
| Parties | HARRIS et al. v. THOMPSON. |
| Court | Colorado Supreme Court |
Error to District Court, Weld County; Neil F. Graham, Judge.
Suit by Charles E. Harris and Charles G. Lofgren, as copartners under the firm name and style of the Lofgren-Harris Mercantile Company, against Andrew Thompson, Jr., with counterclaim by the defendant. Judgment against plaintiffs and in favor of the defendant, and plaintiffs bring error. Reversed and remanded.
H. N. Haynes and Walter E. Bliss, both of Greeley for plaintiffs in error.
Chas E. Southard, of Greeley, for defendant in error.
The plaintiffs in error, copartners in business, brought suit against the defendant in error for damages from an alleged breach of contract. The amended complaint alleges that the plaintiffs had been conducting a large retail merchandise business, and had become embarrassed for lack of ready funds that they needed the aid of an experienced manager, who could afford financial aid as well, and so place their affairs on a more satisfactory basis; that the defendant offered his services and financial aid for the purposes named; that they thereupon entered into a written agreement with the defendant by which he assumed the sole management of said business; that they turned over to him all of the merchandise, book accounts, and other assets of the firm; and that he had violated said agreement in numerous particulars specified in the complaint, including a conversion to his own use of all the property of the firm intrusted to him for the purposes of the agreement, to the plaintiffs' damage in the sum of $12,000.
This agreement, as set out in the complaint, provided that the defendant was to take possession of the stock, book accounts, and fixtures of the firm, and carry on the business as if it were his own, for such reasonable time as might be necessary to clear it of debt. He was to purchase only such goods as were necessary to keep up the staple lines, and was not materially to increase the stock. He was to advance such funds as might be required to pay the firm's listed debts as demanded, to be repaid to him out of the receipts from the business and the collections of the book accounts. His compensation for services and for the use of his funds was to be a percentage of the money paid out, plus the 'marked' value of the goods remaining on hand when the debts had been paid, and the remainder of the stock was ready to be turned back to the firm.
The answer admits the making of the contract; that defendant took possession of a part of the firm's assets; and denies that defendant failed to perform everything required of him by the contract, or that he had converted to his own use any of the firm's property intrusted to him.
For a second defense and counterclaim defendant pleads the contract in the amended complaint set out, and alleges that plaintiffs did not turn over to him all the assets of the firm, the exact nature, value, or amount of which he alleges he cannot state; that he cleared the stock so far as it was incumbered by listed debts and stood ready to dispose of the stock as by the contract provided, but that plaintiffs 'failed to comply with the contract concerning appraisement of fixtures and accounts and failed to dispose of such stock or allow defendant so to do, or to pay defendant the amount justly owing to him'; that he sought and found purchasers for said stock, but plaintiffs defeated all proposed deals; and that he is ready to make full accounting to plaintiffs, but that they are not willing to account to him. He prays for an accounting whereby may be determined the amounts due him as commissions under the contract, and the amounts due him for his advances.
A replication put in issue all new matter in the answer, and the affirmative allegations of the counterclaim.
The court, over the objection of the plaintiff, referred all the issues of fact and law, and upon the coming in of the referee's report, approved the same, denied a motion for a new trial, and entered judgment against the plaintiffs and in favor of the defendant for $3,075.02.
Counsel for plaintiffs in error assign two principal grounds for the reversal of the judgment: first, that a money judgment against the plaintiffs is unwarranted; and, second, that the court erred in ordering a reference, and thereby denying the plaintiffs a jury trial.
It conclusively appears from the record that the judgment was for a balance which the referee found due to the defendant for his services and advances under the contract in excess of his receipts. The report makes no reference to damages accruing to defendant from acts or omissions of plaintiffs.
It is urged that the contract did not contemplate or authorize any...
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Hancock v. State Highway Commission
... ... for breach of contract, do not constitute an ... "account" within the contemplation of the statute ... and Constitution. Harrison v. Thompson, 61 Colo. 87, ... 156 P. 151; Bell v. Mayor of N. Y., 11 Hun, 511; ... Ross v. Combs, 37 Super. Ct. 289; Williams v ... Ingle, 99 Ore ... ...
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Fitzpatrick v. Rogan
... ... accounting generally imports an adjustment of the dealings or ... accounts of the parties. ( Apple v. Smith, 106 Kan ... 717, 190 P. 8; Harris v. Thompson, 61 Colo. 87, 156 ... P. 149; Turgeon v. Cote, 88 Me. 108, 33 A. 787; ... Whitwell v. Willard, 42 Mass. 216, 1 Met. 216.) ... ...
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Austin v. Socony Vacuum Oil Co.
...§§ 14318, 14319 (Stat. Ann. §§ 27.1047-27.1048); Broderick v. American General Corp., 4 Cir., 71 F.2d 864, 94 A.L.R. 1359;Harris v. Thompson, 61 Colo. 87, 156 P. 149. Persuasive factors called to our attention in Bair v. Roosevelt Oil Co., 282 Mich. 443, 276 N.W. 510, are absent here. The t......
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