Swanson v. Johnson

• Decision Date: 24 February 1942
• Docket Number: 2206
• Citation: 58 Wyo. 1,122 P.2d 423
• Parties: SWANSON v. JOHNSON
• Court: Wyoming Supreme Court

122 P.2d 423

58 Wyo. 1

SWANSON v. JOHNSON

No. 2206

Supreme Court of Wyoming

February 24, 1942

APPEAL from the District Court, Carbon County; V. J. TIDBALL, Judge.

Action by Gideon Swanson against P. J. Johnson for an amount alleged to be due plaintiff on the purchase price of a partnership interest, in which defendant filed a counterclaim for the amount of alleged overpayment. Judgment for plaintiff, and defendant appeals.

Affirmed.

For the appellant, the cause was submitted on the briefs of Harold M Johnson of Rawlins.

The plaintiff alleged in his petition that he sold his one-third interest in the partnership for $ 3,333.33. He reiterated this statement in his reply, both pleadings being verified by him under oath. At a time two weeks subsequent to the trial plaintiff applied for leave to amend his reply, by setting up an additional claim of $ 1955.25 for his interest in the fixtures, which were a part of the partnership assets. The sum of $ 3,333.33 was claimed to represent plaintiff's interest in the stock of merchandise comprising the mercantile company business. This amendment was sought as represented to conform to the pleadings and proof offered at the trial. The trial court permitted plaintiff to so amend. Appellant contends that plaintiff is bound by the admission in his reply and estopped from maintaining such inconsistent positions. 19 Amer. Jur. 704, Par. 72; Moore v. Waterbury Tool Company (Conn.) 199 A. 97; 49 C.J. 122. The trial court erred in permitting plaintiff to amend his reply and petition, as recited in the judgment. The only judgment which the trial court could have rendered in favor of the plaintiff was a recovery in the sum of $ 342.98. The trial court erred in permitting plaintiff to make a general audit of defendant's books between March 1, 1936 and July 25 1936; 17 Amer. Jur. 10, 11; 58 A.L.R. 1263. Even if the trial court disbelieved defendant's evidence, the judgment is erroneous, because the court was bound by the admission of plaintiff that he had sold his interest in the partnership of the Tivoli Mercantile Company to appellant for $ 3,333.33. This is the outside price that the plaintiff was entitled to obtain. He likewise admitted that he had received beer of the value of $ 1020.60; the L P. Huner note of the value of $ 1955.25; cash in the sum of $ 8.50 and cooperage of the value of $ 6.00, aggregating $ 2990.30, leaving a balance of $ 342.98. The judgment below for plaintiff in the sum of $ 1926.50 is incompatible with plaintiff's admissions, the law and the evidence.

For the respondent, the cause was submitted on the brief of Armstrong & Armstrong of Rawlins.

The trial court did not err in permitting respondent to amend his reply. Sec. 89-1063, R.S.; 49 C.J. 471, 472, 490 and 491; Bissinger & Co. v. Weiss, 27 Wyo. 262; 33 Wyo. 457; Lellman v. Milles, 15 Wyo. 149; Oviatt v. Hohnholtz, 43 Wyo. 174; Finley v. Pew, 28 Wyo. 342. The bill of sale introduced in evidence by appellant shows that $ 3500.00 was the sale price of the merchandise, but did not cover the fixtures. It is conclusive evidence of the transaction. 22 C.J. 1096; Schroeder v. Schmidt (Cal.) 16 P. 243; Parry v. Libbey (Mass.) 44 N.E. 124; Hogan v. Kelley (Mont.) 75 P. 81; Brady v. Cassidy (N. Y.) 10 N.E. 131. Appellant was not misled by respondent's pleadings of evidence. Sec. 89-1735-6, R. S. 1931; C. B. & Q. R. R. v. Pollock, 16 Wyo. 321; Luther Lumber Co. v. Bank, 22 Wyo. 302; Egen v. Olson, 22 Wyo. 522; Lander State Bank v. Putnam, 40 Wyo. 312; Oviatt v. Hohnholtz, 43 Wyo. 174. The trial court did not err in permitting respondent to examine the partnership books. Sec. 89-1730; Lane v. Stebbins (N. Y.) 3 Eds. Ch. 480; Todd v. Bishop, 136 Mass. 386; DeKoven v. Ziegfeld, 101 N.Y.S. 586; Kamber v. Transp. Co., 102 N.Y.S. 804; 18 C J. 1117; Sanderson v. Cook (N. Y.) 175 N.E. 518. Respondent supported his action by a preponderance of the evidence and the judgment should not be disturbed. Bank v. Richardson, 45 Wyo. 306; 47 C. J. 798; Thompson v. Lowe (Ind.) 12 N.E. 476; Hamilton v. Wells, 55 N.E. 143. In a sale by one partner to another of his interest in the firm, it will be presumed that debts and accounts were taken into consideration in fixing the price. Thoma v. Reisch, 214 Ill.App. 328; Commons v. Snow, 195 Ill.App. 569; Hildebrand v. Chicago, Burlington & Quincy Railroad Co., 45 Wyo. 175; Worth v. Worth, 48 Wyo. 441. Appellant's fourth ground of appeal seems to be that the court was bound by the admission of respondent in his reply, that he had sold his interest in the partnership for $ 3,333.33, but appellant admits that the Huner note for $ 1955.26 presented to appellant was for his interest in the fixtures. The record shows that the purpose of the jumbled statements made by the appellant throughout his testimony, were made to mislead the court. Dozier v. Hillman (Cal.) 287 P. 116. It tended to destroy his testimony. State Finance Co. v. Hamacher (Wash.) 17 P.2d 610. It is a good defense to an action to recover the price of liquors sold by plaintiff to defendant, that the sale was unauthorized. 35 C. J. 665; Murphy v. McNulty (Mass.) 14 N.E. 532; 33 C. J. 661; Miller v. Ammon, 145 U.S. 421; Section 8, Chapter 87, Laws 1935; Co. v. Whipple (Nebr.) 89 N.W. 751; Claus v. Farmers State Bank, 51 Wyo. 45; Kennedy v. Lonabaugh, 19 Wyo. 352. The trial court properly found that defendant was indebted to the plaintiff (respondent herein) in the sum of $ 1,926.50.

Harold M. Johnson in reply.

Respondent in his reply admitted the sale of his interest in the partnership business for the sum of $ 3,333.33. At the trial, he testified that there was an additional purchase price with reference to the fixtures of $ 1955.25. He also testified that he received the note and mortgage of L. P. Huner for $ 1955.25 as part payment of the purchase price for his interest in the Tivoli Mercantile Company. At the close of the trial, plaintiff asked leave to amend his reply, by alleging that by mutual oral agreement the Huner note was delivered to him upon dissolution of the partnership, for his interest in the fixtures of the Tivoli Mercantile Company, and that the $ 3,333.33 was by written agreement the consideration for his interest in the stock of merchandise of said Mercantile Company sold to defendant. The court erred in permitting said amendment. Plaintiff's admission in his pleading as to what he was to receive for his interest in the partnership was conclusive against him. 49 C. J. 122; Horan v. Hastorf (N. Y.) 120 N.E. 58; 2 Wigmore on Evidence, 2d Ed. p. 518; 5 Wigmore on Evidence, 2d Ed. 604. The law recognizes a distinction between judicial admissions, pleadings, demurrers to evidence and estoppels. 5 Wigmore on Evidence, 2d Ed. 605. An admission in a pleading, which excuses pleader's opponent from offering evidence on the point admitted, is conclusive against the pleader. 49 C. J. 486; 14 A. L. R. 75. Respondent contends that parol evidence is inadmissible to contradict the terms of the bill of sale offered in evidence by defendant, but that instrument, being insufficient to constitute a contract, may be explained by parol evidence. Miller v. Van Tassel, 24 Cal. 459; 22 C. J. 1096; 5 Wigmore, 2d Ed. p. 311; 3 Jones Commentaries on Evidence 186. Where a judicial admission in a pleading conflicts with a bill of sale, the former must prevail. 49 C. J. 122. The bill of sale was unnecessary to transfer ownership in personal property. Plaintiff's judicial admission in his reply shows that he sold his interest in the partnership for $ 3,333.33. He admitted credits upon said purchase price of $ 2,990.35, leaving but the sum of $ 342.98 remaining due from defendant, and that was the only amount that the court was warranted in allowing plaintiff to recover.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

The district court of Carbon County awarded Gideon Swanson a judgment for $ 1926.50 against P. J. Johnson, under date of December 12, 1940. Theretofore Swanson as plaintiff had instituted suit in the court aforesaid against Johnson as defendant, claiming there was due plaintiff from Johnson the sum of $ 2298.23, this sum being alleged to be the amount owing plaintiff by the defendant on account of the sale by Swanson to Johnson of the former's one-third interest in a partnership previously existing between them in the retail liquor business. This partnership was operated under the firm name and style of "Tivoli Mercantile Company". The claim thus made was met by the defendant through a general denial and a counter-claim asserting $ 400.54 over payment in merchandise delivered to Swanson by Johnson. A reply was filed by the defendant putting in issue the new matter set forth in the counterclaim just mentioned.

A trial was had to the court without a jury, which resulted in a general finding in favor of plaintiff and a judgment as described above. The parties will be hereinafter designated as "plaintiff" and "defendant" or by their respective names.

Apparently the chief problem confronting the trial court was whether the value of the partnership business aforesaid was to be taken as approximately $ 18,000, as asserted and testified to by the plaintiff and by evidence given in his behalf, or approximately $ 10,000, as claimed and testified to by defendant and supported by his evidence. Additionally, it may be noted that the amounts paid by defendant to plaintiff on account of this sale, and which were for the most part in merchandise delivered to plaintiff by defendant, in payment of the purchase price of plaintiff's interest in the business, are likewise in dispute. In connection with these problems it is urged in this court that plaintiff failed to prove by a preponderance of the evidence that defendant...