Warden v. Richardson

• Decision Date: 19 September 1950
• Docket Number: No. 33766,33766
• Parties: WARDEN et al. v. RICHARDSON et al.
• Court: Oklahoma Supreme Court

Page 338

223 P.2d 338

203 Okla. 474

WARDEN et al. v. RICHARDSON et al.

No. 33766.

Supreme Court of Oklahoma.

Sept. 19, 1950.

Rehearing Denied Oct. 17, 1950.

Syllabus by the Court.

1. The test applied to a demurrer to the evidence is that all of the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn therefrom, are admitted. The court cannot weigh conflicting evidence, but must treat as withdrawn the evidence which is most favorable to the demurrant.

2. As a general rule, in an action for an accounting, where the right to an accounting is put in issue by answer, the burden is upon plaintiff to prove his right to the relief sought. He must put on evidence which reasonably tends to prove that there is a balance due him. If he fails so to do, the bill will be dismissed.

3. If, upon the preliminary hearing, plaintiff makes a prima facie showing that there is something due him, the court will then enter an interlocutory decree that defendant account. If, in such preliminary hearing, it appears that the right of plaintiff to an accounting depends upon one of two conflicting contentions as to the terms of the agreement out of which the alleged right to an accounting is claimed, the court must hear and determine the conflict as to the terms of the alleged agreement before entry or denial of interlocutory decree to account.

C. W. Clift, Oklahoma City, Logan Stephenson, F. C. Swindell, O. C. Lassiter and Earl Truesdell, all of Tulsa, for plaintiffs in error.

Sam S. Gill, Oklahoma City, for defendants in error.

O'NEAL, Justice.

This is an appeal from a judgment for defendant in an action for an accounting. Claude F. Warden and Pearl D. Warden, herein referred to as plaintiffs, commenced this action in the District Court of Oklahoma County against E. L. Richardson and Emma R. Richardson. In their amended petition plaintiffs alleged in substance that on or about July 15, 1943 plaintiffs entered into an oral profit sharing agreement with defendants whereby plaintiffs were to join with defendants in the management and operation of a business known as the Pan Tex Cleaning Company of Oklahoma City; that defendants were to furnish the place of business and equipment and plaintiffs for their services were to receive one-half of the net profits of the business, and defendants were to receive the other one-half of the net profits; that pursuant to said agreement plaintiffs did, on July 15, 1943, join with defendants in the operation of said business, and continued therein until about February 1, 1945, at which time said business relations were terminated by mutual consent; that plaintiffs performed their part of said agreement, and that said business was that of cleaning, dyeing and washing; that defendants handled all the money of said business and plaintiffs managed the work and operation of the plant; that when said agreement was terminated defendants promised to account to plaintiffs for their part of the net profits, but have failed to do so; that defendants collected large sums of money due said firm and refused to pay or account to plaintiffs for their share of the profits; that within three months next before the commencement of this action, plaintiffs discovered that defendants drew the sum of $50.00 per week during said period in violation of said agreement and unknown to plaintiffs; that defendants did not account to plaintiffs for said sum or any part thereof, and that defendants collected other money due the firm and failed, refused and neglected to account to plaintiffs for their part thereof.

Plaintiffs further alleged that upon a full and true accounting there would be large sums of money, approximately $3,500.00, due plaintiffs. Their prayer was that the court decree the relationship of the parties to be that of a partnership, or a relationship in the nature of a partnership, and that defendants be required to account and settle, and that they have judgment for the balance due them and for costs, and for other proper equitable relief.

Defendants answered the amended petition by general denial and further alleged that Emma R. Richardson was the owner of the business referred to in plaintiffs' amended petition, and that defendant, E. L. Richardson, her husband, was the manager of said business; defendants then admitted that E. L. Richardson made an oral contract of employment with plaintiffs which continued from about the middle of July, 1943 to about January 1, 1945, by which plaintiffs were to work in said cleaning and pressing establishment and to receive as their compensation one-half of the net profits, after deducting the sum of $50.00 per week as management for E. L. Richardson in lieu of deductions for taxes, depreciation, insurance, and other general overhead items, the exact amounts of which could not be ascertained from week to week; that plaintiffs worked during said period and that repeatedly and at short intervals, ranging from one week to thirty days, settlements were made and payments were made to and received by plaintiffs, covering any and all sums due, or claimed to be due, to the date of said settlements, and that by reason thereof, plaintiffs have been paid and have received and settled for all sums due or claimed to be due them, or either of them; that defendant, Emma R. Richardson, was not engaged in the operation of said business but her husband, E. L. Richardson, was, and she relied on him for the management and conduct of said business.

Defendants further alleged:

'The defendants further state that said defendant E. L. Richardson was stricken with paralysis during the fall of 1944 and thereafter confined to his bed at his home, becoming progressively weaker physically, until during the summer or early fall of 1945 he lost all ability to speak or write, and since said time and now is confined wholly to his bed unable to talk or write or give testimony in person or by deposition under oath, or otherwise to defend himself in this suit.

'That after defendant's stroke, as aforesaid, the plaintiffs continued their employment in said business, keeping the books and accounts themselves, and making additional repeated accountings and settlements with the defendants at their home until on and between the first and tenth day of January, 1945, when the defendant Emma R. Richardson sold her business, and the plaintiffs theretofore and thereafter making complete and full settlement, and receiving full and complete payment of any and all sums due or claimed to be due them or either of them, said plaintiffs at all times knowing the details concerning any and all withdrawals by E. L. Richardson.'

Defendants further pleaded laches, estoppel and the two, three and five year statutes of limitation.

Plaintiffs filed no reply to the answer of defendants.

The cause came on for trial February 12, 1948 before Honorable A. P. Van Meter, District Judge. The journal entry of judgment recites that a jury was waived and the parties agreed that the case may be tried to the Court.

At the opening of the trial defendants objected to the introduction of any evidence for the reason that the action is an effort to establish a fictitious partnership without any allegations or showing that the law relating to fictitious partnerships had been met and complied with. Therupon the parties stipulated that there had been no compliance with the statute relative to fictitious partnerships. The objection was then overruled and plaintiffs produced their evidence and rested. A demurrer was interposed to plaintiffs' evidence and the demurrer was sustained. Judgment was entered for defendants and plaintiffs appeal.

It is contended that the Court erred in sustaining defendants' demurrer to plaintiffs' evidence. Under that proposition plaintiffs cite the rule that the test to be applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove and all the inferences and conclusions which may be reasonably and logically drawn therefrom are admitted, and that in passing upon a demurrer to the evidence a court cannot weigh conflicting evidence but must treat as withdrawn the evidence which is most favorable to the demurrant. Oklahoma Hospital v. Brown, 87 Okl. 46, 208 Pa. 785, Provident Life & Accident Insurance Company of Chattanooga, Tennessee v. Henson, 187 Okl. 150, 101 P.2d 838.

The rule, in an action for an accounting, appears to be that where the right to an accounting is put in issue by the answer, the burden is upon plaintiff to prove that he is entitled to the relief sought, and if he fails to do so the bill will be dismissed. The plaintiff must prove that there is a balance due him. 1 C.J.S., Accounting, § 39, pp. 677-678.

Plaintiff is not entitled to an accounting...