Terry's Sales, Inc. v. Vander Veur, 16563

• Decision Date: 12 September 1980
• Docket Number: No. 16563,16563
• Parties: TERRY'S SALES, INC., et al., Plaintiffs and Appellants, v. Henry VANDER VEUR 2d et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 29

618 P.2d 29

TERRY'S SALES, INC., et al., Plaintiffs and Appellants, v. Henry VANDER VEUR 2d et al., Defendants and Respondents.

No. 16563.

Supreme Court of Utah.

Sept. 12, 1980.

Roger P. Christensen of Christensen, Jensen, Kennedy & Powell, Salt Lake City, for plaintiffs and appellants.

David M. Bown, Salt Lake City, for Vander Veur.

Irving H. Biele, Salt Lake City, for Valley Bank.

John L. McCoy, Salt Lake City, for defendants and respondents.

CROCKETT, Chief Justice:

This case arose out of a dispute between two former partners in a used-car business about partnership assets and profits. The plaintiff, Terry's Sales, Inc., and its president, Terry West, sued for the assets and an accounting. The defendant, Henry Vander Veur 2d, claims that the parties had settled all of their differences by a settlement agreement requiring him to pay the plaintiff $3,350. From findings and judgment in favor of the defendant, plaintiff appeals.

In March of 1976 some difficulties had developed between these partners. Without going into undue detail, defendant Vander Veur acted upon what he regarded as just provocation to protect his interest in the partnership and its assets. ¹ He withdrew $9,365 from the partnership checking account at Valley Bank and Trust Company, and took seven used cars to his home. One of them, a Plymouth Duster, he sold for $1,200.

When Terry West learned those facts, he filed a criminal complaint against Vander Veur, charging him with theft of the property. That proceeding was later dismissed, but West did get back the six automobiles.

Plaintiff West also filed an affidavit with the bank charging that Vander Veur had used forgery and wrongfully withdrawn the $9,365 from the partnership account. As a result, the bank credited the account with that amount, and Vander Veur turned that amount over to his attorney, John McCoy, to be held pending determination as to its ownership. Mr. McCoy placed the money in a trust account in the same bank, to be held subject to court order.

On April 12, 1976, West filed a civil complaint against Vander Veur alleging conversion of partnership property and fraudulent misrepresentation as to its accounts. He asked for an accounting and dissolution of the partnership. Shortly thereafter, on April 23, 1976, Vander Veur filed a separate action against West alleging derelictions in their partnership operations and charging libel, slander, false arrest, and malicious prosecution.

Those two cases were consolidated into the instant one, with West being designated as plaintiff and Vander Veur as defendant and counter-claimant. Trial was set for December 7, 1977. On November 23, 1977, the parties met at lunch where they had an extensive discussion concerning their mutual problems and the settlement thereof. They do not dispute each other that it was agreed that Vander Veur was to pay West $3,350, $350 down and the balance at $100 per month, without interest if all payments were made timely.

The controversy in the trial court and on this appeal results from the fact that the parties dispute each other as to whether the agreement just referred to settled all the differences between them, as asserted by defendant Vander Veur, and as found by trial court, or whether the amounts of the bank account of $9,365 and the $1,200 for the Plymouth Duster, previously received by Vander Veur, were to be returned to plaintiff Terry West, as he contends.

Plaintiff West's attorney, Richard Walker, was to prepare a written stipulation as to the settlement. After some communication between himself and Mr. McCoy, for the defendant, the stipulation was sent to the latter for Vander Veur's signature. He signed and returned it to Mr. Walker along with the initial payment of $350.

The position essayed by the plaintiff is that he objected to signing the stipulation of settlement because it made no mention of the $9,365 and the $1,200 which defendant Vander Veur had taken possession of as set forth above; and that he signed the stipulation upon Mr. Walker's assurance that it would not be filed until those sums had been transferred to him. The important fact is that, whatever his forebodings were, he accepted the payment, and he signed and returned the stipulation.

Because of his concern about the dispute as to who was entitled to the $9,365 which he held in his trust account, Mr. McCoy instituted an interpleader action naming plaintiff West, defendant Vander Veur, and Valley Bank as claimants, and asked an adjudication as to ownership. On February 2, 1979, at a pre-trial conference held before Judge G. Hal Taylor on that action, it was disclosed to the court and stipulated to by the parties that the instant actions were pending in which ownership of the fund was an issue to be determined. In recognition of those facts, the court entered judgment that the fund should be returned to the partnership account in Valley Bank and frozen (held intact) pending determination of ownership by the court.

Upon a trial of the consolidated actions, Judge Peter F. Leary found the facts in accordance with defendant Vander Veur's version of the evidence and ruled that the settlement the parties had agreed on should be deemed to settle all of their claims against each other.

In attacking the findings and judgment, plaintiff urges: First, that the order made in the interpleader action directing that the $9,365 fund be returned to the partnership account was a determination adverse to defendant Vander Veur's claim;

Second, that there is not a sufficient basis in the evidence to justify a finding that the settlement was of all claims between the parties; and

Third, that in any event, the trial court committed reversible error in ordering the exclusion of Mr. Richard Walker, West's attorney, from the courtroom during the trial, except when he was called to testify.

Interpleader Action

An action in interpleader is a proceeding in equity in which a person who has possession of money or property which may be owned or claimed by others seeks to rid himself of risk of liability, or possible multiple liability, by disclaiming his interest and submitting the matter of ownership for adjudication by the court. ² If the action accomplishes the purpose for which the plaintiff instituted it, it is not necessarily a requisite to its termination that it decide all of the issues between the adverse claimants. ³ It does not appear that Judge Taylor made any adjudication as to the claims of plaintiff West and the defendant Vander Veur as between themselves. He simply recognized that that controversy was pending for resolution in this action; and ordered that the fund be held in the bank until that was done. Accordingly, the judgment in the interpleader action had no res judicata effect upon that dispute. ⁴

Sufficiency of Evidence

The contention plaintiff makes that his settlement agreement with defendant Vander Veur did not encompass his claim for the return of the bank account of $9,365 and the $1,200 for the Plymouth Duster in practical effect amounts to an argument that his version of what occurred is more credible than that of the defendant. The major obstacle to his successful urgence of that position is the standard rule that the credibility of witnesses and of the evidence is for the trial court to determine. ⁵

There are other considerations which support the view adopted by the trial court. Where parties have various claims and obligations to...