Navarro v. Lamana

• Decision Date: 21 October 1915
• Docket Number: (No. 475.)
• Citation: 179 S.W. 922
• Parties: NAVARRO v. LAMANA.
• Court: Texas Court of Appeals

179 S.W. 922

NAVARRO v. LAMANA.

(No. 475.)

Court of Civil Appeals of Texas. El Paso.

October 21, 1915.

Rehearing Denied November 18, 1915.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Action by M. Lamana against Joe Navarro. Judgment for plaintiff, and defendant appeals. Affirmed.

Cole & Cole and A. B. Wilson, all of Houston, for appellant. Atkinson, Graham & Atkinson, of Houston, for appellee.

HIGGINS, J.

Navarro and Lamana were partners doing business under the firm name of Star Bottling Works, in which business appellant owned five-eighths interest, and appellee three-eighths interest. Appellee instituted this suit, seeking a dissolution of the partnership and accounting. An auditor was appointed, who made his report to the court. Exceptions to portions thereof were filed by appellant. Pending a hearing on the exceptions, the parties settled by agreement all their partnership affairs as to the assets and physical properties of the business, leaving only for settlement the matter of the cash balance for division between the partners, a few items of which only were in dispute, as raised by appellant's exceptions to the auditor's report.

The exceptions were passed upon by the court and judgment rendered in sum of $504.33 against Navarro and in favor of Lamana. In arriving at judgment the court found that appellant owed the partnership firm $779.90, of which he was due the appellee three-eighths as his part, or the sum of $292.44; and, it appearing that appellee had already paid $211.80 as his three-eighths of the fee of the auditor, in the sum of $565, the court also rendered judgment against appellant requiring him to repay appellee the amount so expended by appellee, appellant and appellee having previously paid the auditor under an agreement that it would not prejudice either's rights as to the proper taxation of the costs thereof when it came on for hearing.

Navarro was the managing partner, drew all checks, had charge of the cash and bank account, and kept the books of the company, with the assistance of a bookkeeper. According to the auditor's report, there was a difference between the books of the company and the company's bank account of $613.62, the bank account showing that much over and above what the books of the company showed the cash should have been, and there was an additional discrepancy between the receipts of the company as shown by its books and the bank deposits of $772.29, that amount appearing to have been placed in the bank over and above the receipts as shown by the partnership books. The auditor charged Navarro up with these two items, but of the first item $291.59 thereof was satisfactorily accounted for by Navarro, and the court allowed him credit therefor. It was also shown to the satisfaction of the court that the balance of the item mentioned and all of the $772.29 consisted of an overage in the bank deposits; that is, the bank deposits exceeded by these amounts the actual receipts of the business of the partnership. This overage in bank deposits, it was found by the lower court, arose in this manner: Navarro used the bank account of the partnership for his personal business transactions and for the partnership. He mingled his personal and the partnership monies in the partnership bank account. In so doing he relied upon the company's books to show how much belonged to the partnership and how much belonged to him personally. He was a man of considerable means, aside from his partnership interest. Part of the discrepancies indicated probably occured by the practice of Navarro drawing the company's checks payable to cash with which he would pay his employés, and, when the check was surrendered by the bank, he would frequently destroy it, being under the erroneous impression that it would not affect the company's accounts, as he had already charged it to pay roll expense. This practice would show a disbursement by a debit against Navarro for the same amount represented by the...