Rayburn v. Giles, 11420.
| Decision Date | 02 August 1944 |
| Docket Number | No. 11420.,11420. |
| Citation | 182 S.W.2d 9 |
| Parties | RAYBURN et al. v. GILES. |
| Court | Texas Court of Appeals |
Appeal from District Court, Thirty-Seventh District, Bexar County; Robt. W. B. Terrell, Judge.
Action by L. W. Giles against J. E. Rayburn and others for an accounting and partition of an alleged partnership business. From a judgment in favor of plaintiff, the defendants appeal.
Judgment reversed and rendered in part, and in part affirmed.
Bernard A. Golding, of Houston, and Davis, Hall, Clemens & Knight, of San Antonio, for appellants.
George L. Conger and Dent Taylor, both of San Antonio, for appellee.
This is the second appeal in this cause. Giles v. Rayburn et al., Tex.Civ.App., 173 S.W.2d 371. Reference is made to the opinion in the prior appeal for a detailed statement of the main facts in the case. The suit was originally brought by appellee, Giles, against J. E. Rayburn, Lennis Brice, J. S. Futch and G. E. Lockley, alleging that as co-partners they organized and operated a trucking business, into which Lockley contributed certain personal property of an agreed value to be paid him by the remaining four partners who were to contribute their personal services. Each of the five partners was to receive $200 per month salary and share in equal parts the profits and losses of the business. The concern was organized on March 9, 1942, and operated under said agreement until August 11, 1942, when Giles summarily quit the venture and joined up with a competitor in the same business. He not only was paid all the salary accruing to him under the agreement, but overdrew that account in the sum of $293.03. There was no distribution of the net profits of the venture during Giles' connection with it, for, although such profits were shown to be substantial, no dividends had been ascertained or declared thereon during Giles' tenure. In his suit Giles sought to recover one-fifth of the value of the assets of the business at the close of his connection with it, and one-fifth of the net profits earned during that connection. The cause was tried to a jury on special issues, in response to which judgment was rendered in favor of Giles, in accordance with his prayer, against Rayburn, Lockley and Brice, who have appealed.
In response to special issues, submitted by the trial judge under appropriate instructions not complained of on this appeal, the jury found that appellants and appellee were copartners in the business involved; that the market value of the trucks and trailers in use in said venture at the time appellee severed his relationship with the business was $24,000; that the market value of the Railroad Commission permit under which the business was operated was $10,000; that "the amount of the overcharge, if any, on freight hauled by Modern Delivery Service for the United States Government during the dates of from March 9, 1942, to August 11, 1942," was "none." We are of the opinion that there was material evidence to support the several findings of the jury, which therefore are binding upon this Court. It follows that the judgment rendered in pursuance of those findings must be affirmed, unless, indeed, material errors of law occurred in the proceedings and are efficiently presented in this appeal.
One of the alleged assets of the business involved was a temporary permit issued by the Railroad Commission of Texas to appellant G. E. Lockley doing business as Modern Delivery Service, prior to the organization of the venture here involved. The record shows that at the inception of the venture Lockley owned a temporary permit issued by the Railroad Commission of Texas to Lockley d/b/a Modern Delivery Service; that when this venture was entered into Lockley contributed said permit to the venture, at an agreed valuation of $1500. The permit was afterwards amended by the Railroad Commission to cover the operations of the new venture, and the concern operates thereon. Lockley also contributed to the business certain trucks theretofore used by him in the operation of his business at Houston. Lockley contributed the permit and trucks to the business at an agreed valuation of $1500 for the permit and $5200, net, for the trucks. The other partners were to pay to Lockley the sum of $1100 each to compensate him for those contributions to the assets of the firm. By this process those assets became the property of the partnership.
Appellants first complain of the admission of the testimony of certain witnesses as to the market value of the Railroad Commission permit discussed above. This testimony was elicited by appellee to ascertain the value of the permit in determining the amount of his one-fifth interest in the firm's assets.
Upon that issue appellee, Giles, testified on direct examination, in effect, that he had formerly worked for C. & F. Motor Freight Lines, engaged in a business similar to Modern Delivery Service; that at that time C. & F. was the only company of that kind in existence in this State, and the second company was Modern Delivery Service; that he was familiar with the nature and amount of business and probable profits of the C. & F. business; that at that time there were about seven such companies. He was then asked and answered these questions:
Giles also testified:
On cross-examination Giles testified:
Appellants objected to this testimony on the ground that the witness was not shown to be qualified.
The general rule is that the trial judge possesses a wide discretion in determining the qualification of a witness who offers his opinion as to the value of a particular personal property, and the judge's action in admitting that character of testimony will not be disturbed in the absence of a clear showing of abuse of that discretion. 19 Tex.Jur. 76, § 50. In this case, in view of the scarcity of similar transactions like...
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