Stapper v. Van Valkenburgh & Vogel

• Decision Date: 24 April 1939
• Docket Number: No. 5019.,5019.
• Citation: 128 S.W.2d 466
• Court: Texas Court of Appeals
• Parties: STAPPER v. VAN VALKENBURGH & VOGEL et al.

Page 466

128 S.W.2d 466

STAPPER v. VAN VALKENBURGH & VOGEL et al.

No. 5019.

Court of Civil Appeals of Texas. Amarillo.

April 24, 1939.

Rehearing Denied May 22, 1939.

Appeal from District Court, Dallas County; John A. Rawlins, Judge.

Suit by Vic Stapper against Van Valkenburgh & Vogel and others to obtain a certain per cent. of the profits from a business in accordance with contract entered into by the plaintiff and the defendants, wherein the defendants pleaded a cross-action for damages. From the decree, the plaintiffs appeal.

Reformed and as reformed, affirmed.

Cedric G. Hamlin, of Dallas, for appellant.

Julius H. Runge and Runge & Lane, all of Dallas, for appellees.

JACKSON, Chief Justice.

The appellant, Vic Stapper, instituted this suit in the District Court of Dallas County against the appellees, Van Valkenburgh & Vogel, a copartnership, composed of R. W. Van Valkenburgh and his wife, Nellie E. Van Valkenburgh, John C. Van Valkenburgh and Werner F. Vogel. He also sued each of the appellees individually.

The appellant alleges that appellees employed him for one year and agreed to pay him $100 per month and in addition thereto 20% of the net profits of the business for said year; that he rendered the services required of him according to the contract; appellees paid him $100 per month for twelve months and one week, but failed and refused to pay him 20% of the net profits earned in the business during that period.

The appellant predicated his cause of action on the propositions, which were accepted, contained in the following instrument:

                       "Van Valkenburgh & Vogel
                         "Landscape Architects
                      "Design—Construction—Service
                "Telephone 58-1975
                                Dallas, Texas 11/14/35
                

"Dear Vic:

"I have been away about a week and found your letter of the 7th addressed to John on my return.

"There is work here for you to do, that I think will be profitable. I frankly do not know how much you can make, but it looks to me as though you can get out of it at least as much as you have been making. And I have in mind a percentage of the net profit. There are four of us interested, John, Vogel, Mrs. Van and myself, you would be the fifth and we could start off on the basis of $100.00 per month and 20% of the net profit the first year. I think, and John and Vogel believe, you can add something to the business. If you can we are willing to pay you liberally. Of course the business is small and may not be a big success. At present it is well financed, and if the business is susceptible of profitable promotion, John, Vogel and you should be able to get out of it all you are willing to put in. You know more about what can be accomplished in such a business than I do. If I were you I think the opportunity would appeal to me if I had confidence in the future of landscaping.

                    "Yours very sincerely
                            "R. W. Van Valkenburgh."
                

The appellees answered by general denial, specially denied there were any net profits made during the time appellant was employed by them and pleaded a cross-action for damages in the sum of $1,000.

Prior to the trial the parties to the suit agreed that the court should appoint an auditor and on August 20, 1937, pursuant to such agreement, the court appointed P. C. Fewell as auditor and directed that he proceed to make an audit of the books and other records of appellees for the period running from December 3, 1935, to December 10, 1936, and ascertain what, if any, net profits were earned by appellees during said period, to report his findings to the court under oath, and that such findings should be subject to any and all exceptions which the parties desired to make thereto and permitted by the court.

Mr. Fewell, pursuant to the order of the court appointing him, made and filed his report with the court on October 8, 1937. This report shows that the sales of the firm for the period involved amounted to $32,631.83; that the cost of sales was $20,647.42; that the gross profits was the sum of $11,984.41; that the miscellaneous operating expenses, interest on notes, workmen's compensation deposits, refunds, bank debits, depreciation and loss on accounts was the total sum of $4,507.06, and that the profits before deducting the amounts, if any, to which J. C., R. W. and N. E. Van Valkenburgh, W. F. Vogel and Vic Stapper were entitled for services amounted to $7,477.35; that Vic Stapper, from December 3, 1935, to December 10, 1936, at a salary of $100 per month, was entitled to receive $1,230.80; that during that period J. C. Van Valkenburgh and W. F. Vogel jointly used the sum of $2,529 for expenses; that W. R. Van Valkenburgh and his wife, Nellie E. Van Valkenburgh, withdrew nothing from the business for compensation but that Mr. W. R. Van Valkenburgh was credited with $1,692.52; that he had not deducted from the $7,477.35 profits the sum received by appellant, $1,230, plus $82.85, nor the amounts withdrawn by the appellees for the reason that the items to be deducted should be determined after the interpretation of the contract by the court.

The appellees filed exceptions to the auditor's report but appellant's motion to strike such exceptions was sustained by the court and the appellant then withdrew his exceptions to said report and the court "announced that none of the various items in said report could therefore be inquired into during the trial of this case."

A jury was waived and all matters of law and fact were submitted to the court and he adopted the auditor's report showing the business earned a profit of $7,477.35, if no deductions were made for salaries and none for return on capital invested; that the agreement sued on was ambiguous and that under the court's construction thereof the active copartners, R. W. and John Van Valkenburgh and Werner Vogel, should each be allowed a salary in the...