Thomas v. Milfelt
| Decision Date | 17 May 1949 |
| Docket Number | No. 27592.,27592. |
| Parties | THOMAS v. MILFELT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Francois County; Norwin D. Houser, Judge.
"Not to be reported in State Reports."
Suit by R. R. Thomas against William B. Milfelt for a partnership accounting and for appointment of a receiver. From the judgment, plaintiff appeals.
Judgment affirmed.
J. O. Swink, C. P. Damron, Farmington, for appellant.
Dearing & Matthes, Hillsboro, for respondent.
This suit in equity was brought by R. R. Thomas, as plaintiff, against William B. Milfelt, as defendant, for an accounting of the affairs of a partnership and for the appointment of a receiver to take charge of the partnership assets. The suit was originally filed in the Circuit Court of Jefferson County, Missouri, on October 22, 1947, but on application of defendant was taken on a change of venue to St. Francois County, Missouri, where it was tried before the court on May 22, 1948, on the amended petition of plaintiff and the amended answer of defendant. The court found the issues in favor of defendant and against plaintiff, and rendered judgment in accordance with such finding, and ordered that the partners pay into the registry of the court to the order of the Circuit Clerk the balance of $648.60 then on deposit in the Crystal City State Bank, and after payment by the Clerk of all costs, from the sum so deposited, that the Clerk pay half the remainder to plaintiff and his attorney, and half to defendant and his attorney.
Plaintiff alleged, among other things, in his amended petition that defendant had been in active charge of all the partnership business and had failed and refused to account for the bank account, commissions due from sales of automobiles, refunds of wages and "numerous and divers other assets." In his amended answer defendant, after a number of specific denials, alleged that he had made a full and complete accounting and had a complete settlement with plaintiff of all the partnership assets, with the exception of the bank deposit, and denied that he was indebted to plaintiff on account of the operation of said partnership business or any matter arising therefrom.
At the beginning of the trial defendant in open court consented that the court should enter an order that plaintiff was entitled to an accounting, and that the court should proceed on that basis, subject to any defense that respondent had available and "without any defense which we have that there has been a full accounting."
The evidence shows that plaintiff and defendant entered into an oral contract of partnership on March 15, 1946, for the operation of an automobile sales and repair business. The partnership continued in business until October 15, 1946, or the last of October, 1946, when it was dissolved. The precise date of the dissolution is not clearly shown in the record. Each partner agreed to furnish one-half of the capital of the partnership and to receive one-half of the profits. Defendant was to devote his full time to the business as manager for which he was to receive $225 per month. Plaintiff's connection with the business was in an advisory and consulting capacity only. Plaintiff gave $4000 in cash as his contribution to the capital of the partnership. Defendant gave the sum of $3568.40 in cash, $79.80 representing expenses incurred by him for the partnership, $36.80 representing a bill for labor, and $375 representing back salary due him, making a total of $4060 as his contribution to the capital of the partnership. Defendant took charge of the business and managed it from March 15, to the last of October 1946.
On March 22, 1946, defendant procured for the partnership from the Berry Motor Company of St. Louis, Missouri, a franchise to sell Packard automobiles. On June 1, 1946, a garage and a showroom were procured for the use of the partnership. On or about October 15, 1946, the franchise from the Berry Motor Company was cancelled and at that time an inventory of the partnership assets was made and the business was closed and sold to Mothershead Motor Company about the last of October, 1946, for the sum of $3300, which amount the two partners divided equally on the day of the sale.
During the period of the operation of the partnership business defendant procured from the Berry Motor Company for the partnership three Packard automobiles and sold them to the following persons: one to Millard Stolzer, one to V. S. Robinson and the third to Gentry Politte. At about the time of the sale of the business to Mothershead Motor Company defendant procured from the Berry Motor Company another Packard automobile which was consigned to Mothershead Motor Company but delivered direct to defendant. During said period defendant also received for the partnership various amounts of motor oil, tires and inner tubes.
Plaintiff contends that defendant failed to make a proper, full and sufficient accounting, and should have been required by the court to do so with respect to the following items (a) additional profit on the Packard automobile sold to Robinson, (b) commission on the Packard automobile that defendant procured for himself, (c) on certain tires, (d) on motor oil, (e) on certain government checks received through John Maier.
Defendant testified that on August 1, 1946, he sold to Robinson a Packard automobile and the accessories accompanying it; that the cost of these items was $1565.85; that Robinson paid him $1882.67 for the automobile and the accessories which showed a profit of $316.82. Plaintiff concedes that defendant accounted for this profit. On cross-examination defendant testified that Robinson was a building contractor and that he had an arrangement with Robinson whereby defendant put Robinson at the head of his list to sell Robinson an automobile in return for Robinson putting defendant at the head of Robinson's list for the construction of two rooms and a basement of defendant's house; that he, defendant, considered it worth $200 to him to get this arrangement and that a few days after the sale of the automobile to Robinson he, defendant, gave plaintiff $100 and explained to plaintiff the deal he had made with Robinson; that plaintiff at that time said he was satisfied with the deal. In explaining how he arrived at the amount of $200 in the above deal, defendant stated that was the price which a St. Louis contractor said he would charge as a bonus to start such work immediately, and that he gave plaintiff one-half thereof as his share. Plaintiff concedes that defendant did give him the $100.00 mentioned in connection with said deal but contends that defendant sold or could have sold the car to Robinson for $2500. Defendant testified that he did not sell the car for $2500 and denied that he had ever told plaintiff he had done so. Defendant further testified that he talked to plaintiff before making the sale of the automobile to Robinson and told plaintiff that he wanted to make it and that plaintiff insisted that the car should be sold to a party in Chicago who would pay $2500 for it, but that he, defendant, wanted to sell it to a local man and would not agree to make the sale to the Chicago party. The evidence shows that on August 2, 1946, defendant increased his contribution to the capital fund of the partnership by a $300 payment in cash.
Concerning the sale of the automobile to Robinson, plaintiff testified that defendant had said he got $2500 for the car. In this connection plaintiff testified: (Words in parenthesis ours.)
On cross-examination plaintiff testified that two or three days before defendant sold the car to Robinson he told plaintiff he could sell it for $2500 and that two or three days later he ran in and said: Plaintiff testified that from this happening he concluded that defendant had given him $100 and took $100 himself and put the rest in the bank; that he never looked at the deposit book or the other books of the partnership; that he was not satisfied with the deal; that assuming defendant sold or could have sold the Robinson car for $2500, defendant should account for an additional sum of $417.32.
It will be noted that plaintiff did not produce any direct evidence that defendant actually received $2500 in the sale of the Robinson car. Plaintiff merely testified that defendant had told him that he received said amount. Defendant not only specifically denied that he made any such statement to plaintiff, but he went further and testified that he told plaintiff that the franchise of the partnership from the Berry Motor Company would be cancelled if the car was sold in Chicago, which was not only outside the territory that the partnership firm was authorized to serve, but was in another state. It is argued by plaintiff that defendant's contribution of $300 to the partnership shortly after the sale of the Robinson car warrants the conclusion that defendant received $2500 from said sale. We do not agree with that view. Defendant testified positively that said sum of $300 and all other contributions made by him to the partnership came out of his own personal funds. We believe there is no substantial evidence to warrant the conclusion that defendant received for the sale of the automobile in question any more than he received and accounted for to plaintiff.
The record shows that most of the important and vital testimony with respect to the partnership transactions was given by plaintiff and defendant as witnesses. Although the parties in their testimony were in agreement with respect to many of...
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