Meyers v. Barrett & Zimmerman, Inc.
| Decision Date | 24 January 1936 |
| Docket Number | 30,689 |
| Parties | SIMON MEYERS AND ANOTHER v. BARRETT & ZIMMERMAN, INC. AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county for an accounting for attorney's fees, and for partition of real estate. There were findings, Arthur W. Selover, Judge, adverse to plaintiffs, who appealed from an order denying their motion for a new trial. Affirmed.
Evidence -- documentary -- books of account.
1. Books of account regularly and properly kept and maintained in one's business and identified to be books of original entries are under the statute admissible in evidence. 2 Mason Minn. St. 1927, § 9876.
Business necessity requires the maintenance of such books. Their normal purpose is to record the facts. When properly identified and shown to contain entries made in the usual course of business, their normal import speaks for truthfulness and completeness.
Limitation of action -- trial -- evidence -- sufficiency.
2. The court's finding that, "there is not, and there never has been, any mutual, open and current account, with reciprocal demands between the parties to this action, and the action is not one to recover a balance due upon a mutual open, and current account," held sustained by the record.
Limitation of action -- computation of limitation period -- accrual of right of action -- accounts.
3. In order that an account may be considered an account current, or running account, it must appear that, by agreement of the parties, express or implied, all the items thereof are to constitute one demand.
Where transactions are separate and distinct, no open or running account can be claimed.
Limitation of action -- computation of limitation period -- accrual of right of action -- accounts.
4. Plaintiff's complaint negates the theory of an open and running account, as the main purpose was one to accomplish an accounting.
Meshbesher & Anderson and George S. Grimes, for appellants.
Kyle & Kyle, for respondent.
Plaintiffs appeal from an order denying their motion for a new trial. The only defendant involved in this appeal is Barrett & Zimmerman, Incorporated. Hereafter we shall refer to Mr. Meyers as plaintiff and to defendant corporation as defendant.
Suit was brought to obtain (1) an accounting of many old transactions, nearly all of which date back 10 to 20 years prior to bringing of the present cause; (2) to recover attorney's fees and disbursements aggregating more than $8,000, the services rendered and expenses incurred having accrued some 10 or more years prior to bringing suit; and (3) for partition of certain real estate.
The cause was heard by the court. That the many issues and claims involved were given very careful attention and consideration by the court is apparent as the findings and conclusions cover more than 40 pages in the printed record. The court's thoroughness has much simplified our work in going through the voluminous record and the many exhibits involved. The determinative facts are comparatively simple, and the legal problems involved are neither difficult nor doubtful.
The record justified finding the following facts: Prior to 1908 John D. Barrett and Moses Zimmerman were copartners under the name of Barrett & Zimmerman. Their principal business was buying and selling horses, saddlery, harnesses, and other miscellaneous items. They continued in that business until March 25, 1925, at which time they formed a corporation, defendant Barrett & Zimmerman, Inc. That corporation took over all partnership property and assumed its liabilities. The stock issued was divided equally between the former partners, and to each partner's wife was given one share so as to have the qualified number of incorporators.
In November, 1909, these men organized a corporation also known as Barrett & Zimmerman, Inc. The ownership of the stock in this enterprise was exactly the same as outlined above. The business of that concern was buying, selling, and dealing in real estate. At the time of the formation of the new corporation in 1925 the old corporate enterprise likewise was absorbed by the present defendant, i.e., defendant succeeded to the rights and liabilities of both the former copartnership and corporate enterprise.
Mr. Zimmerman died in May, 1933, prior to the commencement of the present suit; Mr. Barrett in March, 1934, immediately after its commencement. Plaintiff Simon Meyers is a practicing attorney and has been actively engaged in his profession over a period of more than 50 years. Commencing in 1908 and continuing until about the first of January, 1922, he acted as attorney and counselor for the copartnership and the first Barrett & Zimmerman corporation, including also Moses Zimmerman in his individual capacity.
In 1908 Mr. Zimmerman, in behalf of his copartnership and himself, made an oral agreement with plaintiff to the effect that the copartnership would furnish money to purchase certain real property in the Minnesota Transfer district. It was thought that this property would be of value for trackage and industrial purposes. Plaintiff was to render services in respect of looking up and locating desirable properties and contacting the owners thereof, examining titles, and assisting in making sales. The profits and losses of the enterprise were to be shared by the partnership and plaintiff in proportion of two-thirds to the partnership and one-third to plaintiff. Pursuant to this arrangement considerable property was acquired, the copartnership furnishing the funds and plaintiff rendering services, all as contemplated by the oral arrangement. It seems that when the corporate enterprise was organized in 1909 the same arrangement was permitted to exist as to it. Sales were made from time to time and accounted for. The venture proved profitable, and the best of feeling apparently existed amongst the interested parties. But later there developed some sort of disagreement. Whatever its cause, the difficulty between plaintiff and defendant had its inception prior to January 1, 1922. The record leaves no room for doubt that from that time he was no longer engaged in his professional capacity by defendant.
In respect of the suit for partition of real estate, the court ordered referees appointed to make partition thereof; that they proceed to make partition after having taken the required oath as such referees. Further, that if they should find that the real estate or any part thereof is so situated that partition cannot be had without great prejudice to the owners, they were to report that fact to the court. The court retained jurisdiction and control over the suit and all proceedings of the referees to be had thereafter.
Plaintiff has conveniently listed his various claims regarding items involved in the accounting suit. As a part thereof and included therewith are his claims for attorney's fees and disbursements. There are eight principal items entering into this phase of the case, the first sum involved being $8,823.47, and the last and smallest $9.17. The first and the largest relates to the so-called "Boutell land." It appears that in 1910 plaintiff entered into some correspondence with the owners of this tract. Plaintiff was the regularly employed attorney for the copartnership and the then corporate entity Barrett & Zimmerman. Title to the property was procured and ran to one Walter D. Boutell by deed bearing date June 11, 1910.Afterwards, in October, a written agreement was entered into between Boutell and Zimmerman reciting in substance that this property had been purchased in common by them for $25,500, of which $7,500 had been paid and a mortgage for $18,000 executed to secure the payment of the balance. Of the case payment made, Boutell had contributed $6,500, Zimmerman $1,000. Title was taken in the name of Boutell for the mutual benefit of both. Provision was made that when Zimmerman repaid Boutell such amount as would make the cash investment of each equal, Boutell was to give Zimmerman a deed of an undivided interest subject to the mortgage. The agreement further provided that when the premises were sold each party was to be repaid the amount of his respective investment; and, after paying encumbrances, the net profits were to be divided equally. This agreement was prepared by plaintiff in his professional capacity. No mention therein was made that plaintiff had any interest in the property. As a matter of fact the property was held until July 20, 1922, when it was sold and large profits derived therefrom. During the intervening period no taxes were paid by or charged to plaintiff or defendant Dooley (who also claimed an interest), and no statements were ever rendered to them or either of them for taxes or other carrying charges or expenses. In other deals wherein plaintiff had an interest statements were rendered from time to time for taxes, interest, and other carrying charges.Further to be noted is the fact that defendant had a complete set of books. Whenever a deal was made appropriate book entries would show the names of the interested parties and the extent of interest of each in the ownership, whether such ownership was a...
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