Vogt v. Lee

• Decision Date: 05 November 1930
• Docket Number: No. 7506.,7506.
• Citation: 32 S.W.2d 688
• Parties: VOGT v. LEE.
• Court: Texas Court of Appeals

32 S.W.2d 688

VOGT v. LEE.

No. 7506.

Court of Civil Appeals of Texas. Austin.

November 5, 1930.

Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.

Suit by O. L. Lee against C. A. Vogt. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for another trial.

John P. Ehlinger, of Lagrange, and Wirtz & Weinert, of Seguin, for appellant.

J. B. Daniel, of Temple, for appellee.

BAUGH, J.

Suit by Lee against Vogt to set aside a partnership settlement made by them on May 2, 1927, after dissolution of their partnership business as of December 31, 1926, on alleged grounds of fraud by Vogt, and for damages. The case was tried to the court without a jury and judgment rendered in favor of Lee for $1,056.96, from which Vogt has appealed.

Lee and Vogt had for many years prior to December 31, 1926, been partners in the sales agency of Chevrolet automobiles, Lee conducting such agency at Flatonia, Tex., and Vogt conducting same at Schulenburg, Tex. Vogt was active manager of the partnership and kept all books and accounts of the business at Schulenburg. When the dissolution was agreed upon, the settlement was based chiefly upon statements furnished by Vogt to Lee purporting to reflect the condition of such partnership business as shown by the books. Lee alleged a fiduciary relationship between him and Vogt; charged that such statements were false and fraudulent in part; that he relied upon Vogt and the information so furnished; that same was not true and induced him to make such settlement which, but for the false statements made by Vogt, he would not have made.

Upon application of both parties an auditor was appointed by the trial court under the provisions of article 2292, R. S. 1925, who audited the books of the partnership, filed his report consisting of 200 pages, a copy of which by agreement of the parties is brought forward with the record as a part of the statement of facts. This report was objected to in writing before the trial in numerous particulars by Lee, but no objections thereto were made by Vogt. The record does not show that said report was verified by the auditor named by the court, but no objection was made to same by either party on that ground; and the report was obviously considered by the court as a basis for his judgment.

The principal items of damage claimed by Lee, concerning which he alleged that he had been deceived in making the settlement were:

1. That under the partnership arrangement each member was to be allowed, as a charge against the partnership, $10.50 for servicing each new car sold by him during the free service period granted the purchaser; whereas, Vogt had charged, without Lee's knowledge, during said arrangement, an excess aggregating $1,756.75 over that allowance.

2. That neither partner was to charge the firm any rent on the respective salesrooms furnished by him; but that in violation thereof and without Lee's knowledge Vogt had charged the partnership rents on the sales room furnished by him at Schulenburg, aggregating $1,312.50.

3. That neither partner was to charge the firm any of his individual traveling expenses; but that Vogt had without Lee's knowledge charged to the partnership his traveling expenses aggregating $2,259.04.

4. That Vogt and one Nordhausen had made certain land purchases for which $3,288.35 in money was furnished by the partnership. That by reason thereof and for cars sold to him Nordhausen became indebted to the partnership for sums in excess of what the partnership owed Nordhausen as commissions on sales of cars made by him for the partnership. That Nordhausen also owed Vogt individually, and after Nordhausen's death Vogt credited Nordhausen's debt to him individually with $1,644.16, the amount of commissions owed by the partnership to Nordhausen, instead of crediting same on the debt of Nordhausen to the partnership.

The reports furnished by Vogt to Lee as a basis for their settlement were not in evidence. Only the testimony of Lee as to what they showed or failed to show is reflected by the record. There was sufficient evidence to sustain a finding of fraud as that issue was made by the pleadings, but, in view of a remand of the case for a new trial on other grounds, we refrain from a discussion of the evidence here.

We do not sustain appellant's contention as to the auditor's report. Even if it were not verified, as required by law, no objection was made to it for that reason; it was requested by both parties; used and considered as competent by both parties; portions of it introduced in evidence without objection of either party; was obviously accepted by the trial court as a basis for his judgment; and by agreement of the parties it is brought to this court...