Warren v. Mosher

• Citation: 250 P. 354,31 Ariz. 33
• Decision Date: 28 October 1926
• Docket Number: Civil 2497
• Parties: ELMER WARREN, Appellant, v. HATTIE L. MOSHER, as the Surviving Partner of the Firm of WILLIAM B. LOUNT and HATTIE L. MOSHER, Doing Business Under the Name of CITY ICE DELIVERY COMPANY, and C. P. LEE, as Receiver of Said CITY ICE DELIVERY COMPANY, Appellees
• Court: Supreme Court of Arizona

250 P. 354

31 Ariz. 33

ELMER WARREN, Appellant, v. HATTIE L. MOSHER, as the Surviving Partner of the Firm of WILLIAM B. LOUNT and HATTIE L. MOSHER, Doing Business Under the Name of CITY ICE DELIVERY COMPANY, and C. P. LEE, as Receiver of Said CITY ICE DELIVERY COMPANY, Appellees

Civil No. 2497

Supreme Court of Arizona

October 28, 1926

APPEAL from a judgment of the Superior Court of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Messrs Alexander & Christy, Mr. Hess Seaman and Mr. Robert McMurchie, for Appellant.

Mr. W T. Sprowls and Mr. John W. Ray, for Appellees.

OPINION

LOCKWOOD, J.

William B. Lount and Hattie L. Mosher, his sister, had for many years been copartners and doing business under the name of the City Ice Delivery Company, within the city of Phoenix. The active management of the partnership up to the year 1918 had been in Lount. About that time he removed to the state of California and only returned for periodical visits, leaving Eugene Jackson, Howard Brazee and Fred Warren in charge of the actual operations of the business, the first being the head of the manufacturing department, the second of the office and bookkeeping and the third of the delivery of the ice to the customers of the partnership, while Elmer Warren, hereinafter called plaintiff, was also an employee.

In 1919 Lount wrote in one of the books of the partnership the following:

"Phoenix, Arizona, March 12, 1919.

"After deducting ten thousand dollars from the gross proceeds of the year 1919 the company will pay as a bonus to Eugene Jackson Fred Warren, Elmer Warren, and H. J. Brazee, 3 per cent, each of the remaining proceeds or to such of them that are with the company at the end of the year.

"CITY ICE DELIVERY COMPANY,

"By W. B. LOUNT."

In 1920 the following entry was made underneath the former one:

"Continued for 1920.

"CITY ICE DELIVERY COMPANY,

"By W. B. LOUNT, Mgr."

Substantially the same entries were made for 1921, 1922 and 1923, except that the percentage was raised to three and one half per cent. In 1924 the following entry was made:

"Beginning with 1924 the City Ice Delivery Company will pay as a bonus to Eugene Jackson, F. E. Warren, Elmer Warren and H. J. Brazee, one-half of the gross proceeds after deducting ($8,000) eight thousand dollars from the operating profits. Said bonus to be divided equally among those above named who are working for the City Ice Delivery Company at the end of the calendar year.

"This bonus to remain in full force and effect until countermanded.

"CITY ICE DELIVERY COMPANY,

By W. B. LOUNT, Mgr."

In September, 1924, Lount died, and Mrs. Mosher as the surviving partner took over the control and management of the business affairs and property of the firm. All of the four parties named in the agreement as entitled to a bonus remained in the service of the City Ice Delivery Company for the balance of the calendar year. Mrs. Mosher, whom we will hereinafter call defendant, at the end of the year refused to pay any bonus whatever, and plaintiff brought suit against her for the amount of the bonus due him, it being admitted that if anything were payable under the agreement it would be $1,196.37. The case was tried to the court without a jury, and judgment was duly rendered in favor of defendant, no findings of fact being filed. An appeal has been taken to this court by plaintiff.

There are in substance two assignments of error, one that the court erred in admitting a certain letter; and, second, that under the undisputed evidence as a matter of law plaintiff was entitled to judgment. We are met in the first place with the very common condition of a judgment with no findings of fact. Under these circumstances, as we have held repeatedly, we must assume that the court made every finding of fact necessary to support the judgment, and that these findings were correct, if there is any evidence in the record to sustain them. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587; Brown v. Peterson, 27 Peterson, 27 Ariz. 418, 233 P. 895. It has therefore been necessary for us to read carefully the entire reporter's transcript of the evidence given before the trial judge.

We think it is unnecessary to consider the first assignment of error, as the case in our opinion should be disposed of on a point which renders it immaterial as to whether or not the court properly admitted the letter objected to. Briefly stated, the evidence, taken in the most favorable light for defendant, as we must take it under the foregoing rule of law, shows, in addition to the facts stated by us above, the following:

Plaintiff herein and his brother, Fred Warren, were brothers-in-law of William B. Lount. For many years defendant had felt her brother was pursuing a policy of unjustified nepotism in the management of the ice company, and particularly so as to plaintiff herein. She had protested against this both to her broth...