Johanik v. Des Moines Drug Co.
| Decision Date | 08 March 1949 |
| Docket Number | 47221. |
| Citation | 36 N.W.2d 370,240 Iowa 310 |
| Parties | JOHANIK v. DES MOINES DRUG CO. |
| Court | Iowa Supreme Court |
Chester J. Eller, of Des Moines, for appellant.
R O. Garber, of Des Moines, for appellee.
Plaintiff originally instituted a suit at law against the defendant claiming that approximately $60,000 was due him in connection with a five year written contract entered into in May 1938 for the operation of defendant's farm commencing with March 1, 1939. The petition was in three counts. Count I alleged that there was due from the defendant one-half of certain items growing out of the operation of the farm, the amount of which would be set forth when the plaintiff had an opportunity to examine the records in possession of the defendant. Count II alleged that there was a balance due plaintiff in the approximate sum of $25,000 for the years 1939, 1940, 1941 and 1942 and that an itemized statement would be set out as soon as the books and accounts were produced and examined. Count III of the petition alleged that the defendant had connived and schemed to defraud the plaintiff from the inception of the contract; that defendant had obtained certain agreements by threats, all to plaintiff's damage, both actual and exemplary in the sum of $15,000. On July 29, 1944 the defendant filed a motion to dismiss all three counts of plaintiff's petition, and subject to ruling on the motion to dismiss, moved the court to transfer Counts I and II to equity. This motion was overruled and the defendant thereafter appealed to this court. In an opinion in the case of Johanik v. Des Moines Drug Company found in 235 Iowa 679, 17 N.W.2d 385, this court reversed the ruling of the district court.
Supplemental pleadings were filed from time to time by the respective parties relative to the issues involved. Thereafter the cause came on for trial in equity upon Counts I and II and after due consideration by the district court it filed certain findings of facts and conclusions of law. It held that at certain stated periods the plaintiff and defendant entered into a written agreement to the effect that the statement of account to such date was true and correct and the respective parties acknowledged receipt in full of all moneys due each of them. The trial court further found that on the 14th day of February 1944 plaintiff and defendant entered into a final stipulation of settlement relative to the termination of their joint adventure agreement. It also held as a matter of law that the plaintiff was not entitled to the relief he demanded, in that he had failed to sustain the allegations that there had not been a proper accounting and further that the plaintiff had failed to sustain his allegations of fraud, collusion and overreaching on the part of the defendant in his relations with the plaintiff. It held that the plaintiff's petition should be dismissed with prejudice at his cost and decree was thereafter so entered. This decree further provided that the plaintiff's petition as amended, 'including the cause or causes of action alleged therein be and the same is hereby dismissed with prejudice * * *.' From this decree the plaintiff has appealed.
The appellant in the pleadings filed and by the evidence presented sought to show that certain items were improperly charged against him in the accounting made. In the claimed errors enumerated as grounds for reversal the appellant contends that the failure of the trial court to consider favorably these items constituted reversible error. Inasmuch as we shall limit our consideration of this appeal to the question whether the statements of account made at stated periods constituted a full and complete settlement between the parties we shall not summarize the pleadings filed or the several grounds for reversal. However, in connection with our limited consideration it should be stated that appellant pleaded in part that the manner of accounting used by appellant was improper, had no binding force or effect on either party, was invalid, was without consideration and was obtained through undue advantage and false promises and fraud. As one of the grounds for reversal appellant contends that certain releases signed by him did not constitute stated accounts, did not have any legal existence whatsoever and were obtained through false promises, undue influence and advantages and are not binding in any way upon him. It will not be possible to set out the original agreement entered into between the parties because of its length. Besides it is not necessary for a disposition of this case.
By reason of the contention of appellee that there has been a settlement of the stated accounts on a yearly basis there is herewith set forth a portion of the agreement relative to these several yearly accounts, each of which is in the same wording. The material part of these agreements is as follows:
'Now, therefore, it is hereby mutually agreed by and between the Des Moines Drug Company, party of the first part, and August Johanik, party of the second part, that said statement of account is a true and correct account as it existed between the party of the first part and the party of the second part on the 31st day of December * * *, with the exception that the interest due the party of the first part on the livestock and machinery furnished by it has not been computed and shown in the statement of account.
'It is further agreed that neither the party of the first part nor the party of the second part have any claim of any nature whatsoever against each other, other than those set out in the statement of account, said statement being attached hereto, marked Exhibit 'A', and by reference made a part hereof, save and except the interest due the party of the first part by the party of the second part on the livestock and machinery furnished by the party of the first part.
'It is further agreed by the undersigned, other than the party of the first part and the party of the second part, that they have received in full all monies due them for any services rendered, whatsoever, to either the party of the first part, party of the second part, or to one or the other of them.'
I. This court in the prior referred to appeal, Johanik v. Des Moines Drug Company, supra, held that the agreement entered into between the appellant and appellee was a joint adventure agreement. It was further therein held that the parties to a joint adventure occupy a fiduciary relation as between themselves and that generally joint adventurers are governed by the same rules at least of substantive law that govern partners.
The appellee contends that the yearly stipulation of settlement to which we have previously referred was an account stated and that the appellant is bound thereby. Hereafter is set out authoritative statements relative to the applicable law of accounts stated:
In 48 C.J.S., § 11e, pages 846, 847, 'Joint Adventure' it is stated:
'When the parties to a joint adventure have had an accounting between or amoung themselves as to the amount of profits which each is to have, it constitutes an account stated between the parties, and in accordance with the well settled rule cannot be reopened or set aside unless impeached for fraud or mistake, especially if the parties have allowed it to stand for a long time without objection.'
In 1 C.J.S., § 12, page 698, 'Account Stated' the following is set forth:
'As between themselves partners may make statements of accounts which will be binding on them unless impeachable for fraud or mistake, and such accounts may be stated either during the existence of the partnership particularly where, when the partnership was formed, the parties, by agreement, determined the manner in which such an accounting should be had, or upon its dissolution. * * *'
A further comment concerning an account stated between partners is found in 1 Am.Jur. p. 285, sec. 30, 'Accounts and Accounting', wherein it is stated: 'The general rule that an account stated is binding in the absence of proof of fraud or mistake is applicable to...
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