Mumm v. Adam
| Decision Date | 11 February 1957 |
| Docket Number | No. 17709,17709 |
| Parties | Claus MUMM, Plaintiff in Error, v. Henry ADAM, Defendant in Error. |
| Court | Colorado Supreme Court |
Erskine R. Myer, W. Keith Peterson, Rendle Myer, Denver, Harry E. Mast, Ordway, George S. Cosand, La Junta, for plaintiff in error.
Erven T. Larson, Ordway, Lawrence Thulemeyer, La Junta, for defendant in error.
The parties were aligned in the trial court as they are here. Plaintiff brought suit to recover on a note and on a check. A favorable verdict in his behalf of these claims is not contested before this court.
Defendant Adam filed his counterclaim, alleging 'that defendant and plaintiff were actively engaged in a partnership business known as 'La Junta Livestock Commission Company' from April 1, 1946 until January 17, 1950, that said partners each had a one-half interest in said partnership business.' It was further alleged in the counterclaim that, during the existence of the partnership and in the winding up thereof, plaintiff was in full and complete charge of keeping the books of the partnership; that, during the partnership, plaintiff was obligated to furnish defendant with an accounting of all sums received by and paid out on behalf of the partnership; that defendant made numerous demands on plaintiff to furnish defendant with such an accounting, which were refused, except that at the close of each year plaintiff furnished defendant with partnership income tax returns, at which time defendant was advised that such returns disclosed the extent of his earnings from the partnership; that defendant was not allowed access to the books until after the commencement of this action.
In the concluding paragraph of the counterclaim, it is alleged 'that the books kept by said plaintiff do not reflect the true extent of the profits earned by said partnership, in that plaintiff omitted from the said books numerous sales of liverstock made by and on behalf of the partnership through the livestock auction sales ring operated by the partnership and, by reason of said omissions of sales in the books kept by the plaintiff, Claus Mumm, understated said sales to the extent of the sum of $100,417.33; that by adding the said numerous sales of livestock omitted to the sales made by said partnership, it results in a profit of $100,417.33 to the partnership, of which sum defendant is entitled to recover half thereon from the plaintiff, Claus Mumm.'
The plaintiff, in his answer to the defendant's counterclaim, admitted the existence of the partnership from April 1, 1946 until January 17, 1950, the equal ownership thereof, but otherwise generally denied the allegations of the counterclaim. Trial was had before a jury on the issues thus raised, resulting in a verdict in favor of the defendant on his counterclaim in the sum of $50,175.06. Judgment was entered on the verdict, which plaintiff now seeks to reverse.
Motion for dismissal of the counterclaim at the close of the defendant's evidence and a motion for directed verdict upon completion of all the evidence were made by the plaintiff, and each was denied. The verdict and judgment were entered November 24, 1954. On December 6, 1954 the court enlarged the time in which to file motion for directed verdict and motion for new trial, granting 'an additional Twenty days beyond that granted under Rule 50, Section B,' R.C.P. Colo. On December 18, 1954 plaintiff filed his motion for a directed verdict and in the alternative for a new trial. It was not asserted in the motion for new trial, as grounds for reversal, that the trial court erred in denying the motion to dismiss at the close of defendant's evidence on the counterclaim, and in denying the motion for directed verdict upon completion of all the evidence on the counterclaim. This motion for directed verdict and in the alternative for a new trial was denied.
The court, in its Instruction No. 1, set forth in detail the issues of the case, and in charging the jury advised that the defendant in his counterclaim alleged 'that at all times during the partnership, the plaintiff, Claus Mumm, was in full and complete charge of keeping the books of said partnership; * * * that defendant made demands to the plaintiff to furnish such accounting and the plaintiff refused, except that plaintiff caused partnership income tax returns to be made up at the end of each year's business and advised defendant as to the extent of his earnings.' In the same instruction, the court advised the jury, inter alia, that 'the plaintiff denies that he was in full and complete charge of keeping the books of the partnership at all times during, and in the winding up, of the partnership affairs;' that the plaintiff denied the matters alleged by the defendant concerning the income tax returns.
Instruction was given on burden of proof in regard to the complaint and the counterclaim. By Instruction No. 6 the trial court advised the jury that if they further found 'that Claus Mumm did not keep a complete record of the sales of company livestock and did omit from the record of the sales of company livestock sums in any amount, you shall not find damages for the defendant in any amount, solely because of omission from the record of any company sales, but damages to defendant, if any, shall be such damages as you find defendant actually suffered because of said omissions, which cannot exceed $50,208.66.'
No instruction was given on the question of what constitution a dissolution, an accounting, a settlement of accounts, or a winding up of the partnership. Upon the instructions being settled, the following colloquy took place:
The evidence is not in dispute that the partnership operated a livestock sales ring at which it auctioned livestock purchased and owned by the partnership, and livestock of third parties; that, with the exception of seven entries, all entries in the books of the firm were made by plaintiff; that the records and books of the partnership were kept at the place of business of the partnership during the time of its operation; that plaintiff employed a bookkeeping service to make partnership income tax returns based upon the books kept by him; that copies of said income tax returns were furnished to the defendant; and that the sales ring was closed and the business of the partnership terminated on February 17, 1950, and the sales sheets, from which the entries in the books in part were made, were stored in defendant's garage.
From the evidence, the jury could draw the inference that the partnership income tax returns represented periodic accounts between the partners. The evidence is somewhat indecisive on this matter because, as to both plaintiff's and defendant's evidence, there is considerable internal conflict on how these returns were received by the parties. The evidence is not clear on whether a dissolution had been effected and a settlement of the accounts made. Inferences of an affirmative or negative character could have been drawn by the jury from the evidence submitted relating to dissolution and settlement of accounts.
It is the contention of the plaintiff that the counterclaim, and the evidence presented in support thereof He further contends that 'the trial...
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...the time within which to file a motion for judgment n.o.v. is without effect in view of the provisions of C.R.C.P. 6(b). Mumm v. Adam, 134 Colo. 493, 307 P.2d 797 (1957). C.R.C.P. 6(b) provides that a court may not extend the time for taking any action under this rule. Ross v. Arrow Mfg. Co......
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THE COLORADO APPELLATE RULES
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Rule 59 MOTIONS FOR POST-TRIAL RELIEF.
...the time within which to file a motion for judgment n.o.v. is without effect in view of the provisions of C.R.C.P. 6(b). Mumm v. Adam, 134 Colo. 493, 307 P.2d 797 (1957). C. R.C.P. 6(b) provides that a court may not extend the time for taking any action under this rule. Ross v. Arrow Mfg. C......