Stevens v. Gray

• Decision Date: 20 July 1953
• Docket Number: No. 7781,7781
• Citation: Stevens v. Gray, 259 P.2d 889, 123 Utah 395 (Utah 1953)
• Parties: STEVENS, v. GRAY.
• Court: Utah Supreme Court

Page 889

259 P.2d 889

123 Utah 395

STEVENS, v. GRAY.

No. 7781.

Supreme Court of Utah.

July 20, 1953.

Elias Hansen, Salt Lake City, for appellant.

George W. Warthen, Provo, for respondent.

CROCKETT, Justice.

Edward R. Stevens in this suit sought to recover from Mr. Fearn Gray a balance of $9,216.29 he claims due him upon an accounting of a partnership in which the two engaged in the business of buying, feeding, and marketing cattle. Gray denied any debt; set up a somewhat detailed account showing:

Partnership costs and expenses $144,053.16

Less total income 115,650.96

Net loss $28,402.20

Of the said loss he admits that plaintiff Stevens bore the sum of $9,340.76 but claims that he bore the balance of $19,061.44 and that Stevens should be compelled to pay defendant Gray one-half of the difference between these sums, that is $4,860.34, for which he counterclaims.

This case classifies among the most protracted litigation ever to come to the writer's attention. The period of the partnership operations was from about November 1936 to March 1939. The complaint was filed January 22, 1947 (for reasons not material here, the statute of limitations is not involved). The trial commenced June 17, 1947; after intermittent continuances, presentation of evidence was concluded on July 3, 1947. During the trial both parties discovered that their original pleadings did not reflect the actual situation and mutually agreed, with the court's consent, that amended pleadings to conform to the proof would be filed after presentation of the evidence--which was done. The court had the matter under advisement for nearly four years, and on July 25, 1951, filed a memorandum indicating his decision in the case, which simmered the account down to a judgment against the plaintiff on his complaint and in favor of the defendant on his counterclaim for the sum of $84.359

Plaintiff pointedly, perhaps it is better said, bitterly, complains of such delay and contends that because of it the details of the many different partnership transactions and of the extensive evidence relating thereto must have passed from the memory of the trial court. Our review indicates that there may be some substance to this contention. It is appreciated that the trial court is always much occupied with the press of current business. Yet we are constrained to observe that we fail to see how any advantage could be gained by anyone, including the trial judge, from any such long delay as occurred here. As has been wisely said, 'Justice delayed is often justice denied.' We regret that this delay occurred. It forms one of the unfortunate examples of 'the law's delay' sometimes pointed to as a grievous fault, to which both trial and appellate courts, including this one, too frequently may be addicted, and which we who administer the law as judges, should to the utmost of our ability, consistent with due care and deliberation, seek to eliminate.

This action for an accounting is in equity and appeals to this court's scope of review, which was elaborated in Crockett v. Nish: ¹

'Since this is a suit in equity, it is our duty under Art. VIII, Sec. 9 of the Constitution, to review the facts. In examining the transcript to determine what our conclusions from the evidence will be we are to make an independent analysis of it. If at the end of that investigation we are in doubt or even if there be a slight preponderance in our minds against the trial court's conclusions we will affirm.'

As indicated, the judgment of this court will not be substituted for that of the trial court merely because we might disagree with him, but we will do so only when the evidence clearly preponderates against his findings. ²

No good purpose would be served by reciting the multifarious transactions of the firm. We limit discussion to a necessary background and facts pertaining to the principal errors assigned.

The partnership arrangements were that the parties were to divide profits and bear losses equally. Both advanced money to buy cattle, feed them and finance the enterprise; the greater portion of the active management and actual handling and feeding of the cattle devolved upon Mr. Gray.

Stevens' main indictment against the judgment is that the trial court erred in awarding Gray 36 1/2cents per day per head for feeding partnership cattle. He argues that the charges now asserted by Gray in this regard are exorbitant claims devised as an after-thought to offset against Stevens in this suit for an accounting. A number of aspects of the evidence demonstrate the likelihood that there is at least some merit to this contention.

The first significant fact to be noted pertaining to this contention is that Gray, in his original pleadings, only asked for 35cents per day for feeding, and asserted no separate charge for the hiring of labor and equipment; whereas he later amended his pleadings to ask for the higher amount plus a very considerable claim for the men, teams and wagons, which is later herein referred to. Second, although a substantial portion of the feeding expenses were for cottonseed meal and rolled barley upon which there should have been commercial records, no weighbills, invoices or other record evidence of such expenses were kept or produced by Gray; third, this is likewise true with respect to the men, teams and wagons allegedly hired. Fourth, as to the hay fed from his own stacks, which had to be hauled, although scales were easily accessible, Gray failed to weigh it or even measure it in the stacks or otherwise keep records of the amount used. As to the latter matter, perhaps no great importance can be placed thereon because it may not be reasonable to expect him to keep records as to hay hauled out of his own stacks. But as to the expenses of the feeds, and the men, etc. hired, it seems only fair and proper that, knowing he would charge these expenditures against the partnership and offset them against Stevens' expenses, he should have kept records. ³ In a partnership accounting, the partner claiming a credit in his favor has the burden of proving it. ⁴

Stevens challenges the propriety of receiving secondary evidence of such expenditures. Ordinarily, if an explanation of failure to produce such records is satisfactory to the trial court it is within his discretion to receive other evidence concerning such facts. Gray evidently met this requirement because the court allowed him and another witness to testify in reference to the issue. It is true that where such records should have been kept, and are not produced, the court should look with extreme caution upon such secondary evidence. In the instant case we see no justification for interfering with the trial court's ruling, and it is not advisable here to do so or to give any extensive consideration to the matter because, when all of the evidence is evaluated, it so clearly preponderates in favor of the contentions of Stevens and against Gray's claims that the finding of 36 1/2cents per day for feeding cannot be allowed to stand.

The finding just referred to rests only upon testimony offered by Gray himself and one other witness, Rodney Martin. In addition to the fact above noted, that Gray had no record to support his claims, it is to be remembered that he was self-interested in the highest degree because he was being sued on the account and was seeking to offset his charges against it. Instead of giving amounts of expenditures, he based his testimony upon his estimate of the average daily ration of feed steers would consume during the fattening process: barley 10 pounds, corn 1 pound, bran 1 pound, cottonseed meal 1 pound, hay 30 pounds. At the prices shown for these commodities, the average daily cost per steer would be about the amount allowed by the trial court. An analysis of the testimony of Rodney Martin, Gray's only other witness on this point shows that on the basis of the actual costs of feeds testified about by him, the average daily cost would be about 24cents. He did mention other feeds without specifying either amounts or costs.

As...