Shaw v. Lobe

• Decision Date: 29 April 1910
• Citation: 108 P. 450,58 Wash. 219
• Parties: SHAW v. LOBE.
• Court: Washington Supreme Court

108 P. 450

58 Wash. 219

SHAW v. LOBE.

Supreme Court of Washington

April 29, 1910

Department 1. Appeal from Superior Court, King County; John F. Main Judge.

Action by R. W. Shaw against Rosa Lobe, executrix. From a judgment for defendant, plaintiff appeals. Affirmed.

G. Ward Kemp, for appellant.

Richard Saxe Jones, for respondent.

FULLERTON J.

The appellant, as the assignee of one Lee D. Gilmer, brought this action against the respondent to recover a balance claimed to be due on an account stated between Gilmer and E. Lobe, the devisor of the respondent. The complaint carried a prayer in the alternative for a partnership accounting in case the court should fail to find the existence of an account stated. After issue had been joined a trial was had before the court without a jury, which resulted in a judgment in favor of the respondent. This appeal is taken therefrom.

Two principal questions are presented, the first of which is that the court erred in failing to find an account stated between Gilmer and Lobe. The record discloses that these persons were partners from December, 1901, until March, 1905, engaged in the insurance, real estate, mining, and loan business, and the business of selling oil on commissions. They were not equal partners. Gilmer, by writing, executed June 24, 1902 expressly waived any interest in the real estate and mining business done by the firm, and it seems to have been orally understood that the commissions received from the insurance business were to be divided on a basis of two-thirds and one-third, the larger proportion to go to the partner at whose solicitation the insurance was procured. The active work of the partnership was done by Lobe, while Gilmer did the office work and kept the books. The firm as a firm had no joint bank account. All money received belonging to the firm was turned over to Lobe who deposited it in his own name, and drew checks thereon from time to time as the exigencies of the business required. On the dissolution of the partnership Gilmer made out a statement from the books by which he showed a balance in his favor of some $2,986.51. The statement contained an account of the receipts of the firm during the time of the partnership from the various business in which it was engaged, the proportionate share thereof claimed by Gilmer, and the balance, after deducting certain losses of the firm, and the sums withdrawn by Gilmer on his personal account. No deduction was made for rents or operating expenses, although the books show that the latter amounted to a considerable sum. This statement was delivered to Lobe who afterwards paid Gilmer in installments the sum of $1,150, the last payment being made on May 26, 1906. After the statement was received by Lobe he had it checked over by the bookkeeper who succeeded Gilmer, and that person testifies that he disputed a number of the items going to make up the account. The statement was found after Lobe's death among his effects,...