Wendling v. Jennisch

• Decision Date: 20 May 1892
• Citation: 52 N.W. 341,85 Iowa 392
• Parties: ELIZABETH WENDLING, Administratrix, Appellant, v. C. H. JENNISCH, Appellee
• Court: Iowa Supreme Court

52 N.W. 341

85 Iowa 392

ELIZABETH WENDLING, Administratrix, Appellant, v. C. H. JENNISCH, Appellee

Supreme Court of Iowa, Des Moines

May 20, 1892

Appeal from Winnesheik District Court.--HON. L. E. FELLOWS, Judge.

ACTION for the dissolution of a partnership and for an accounting.The defendant pleads, in substance, a general denial.Upon the trial there was a finding and decree for the defendant from which the plaintiff appeals.

Reversed.

G. R Willett, for appellant.

L Bullis, for appellee.

OPINION

KINNE, J.

I.

It appears from the evidence that in the year 1859 or 1860, the plaintiff's intestate, G. L. Wendling, and the defendant, C. H. Jennisch, entered into a business arrangement, not in writing, by the terms of which the plaintiff's intestate was to furnish the material and labor for the woodwork, painting, and upholstering of carriages, buggies, wagons, cutters and sleighs.The defendant was to furnish the material and labor for the ironwork for said vehicles.The proceeds of the product of their joint labor, when sold, was, it seems, to be divided between them in proportion to what each had put into each of said articles.They each carried on their respective branches of said business, in their own separate shops, and also in their respective shops carried on the business of repairing and other business, in which there was no joint interest.They continued business under this arrangement until in 1882 or 1883, at about which time disagreements arose between the parties.Of the articles manufactured under their agreement the plaintiff's intestate and the defendant from time to time made sales for cash and on credit.Sometimes the credit was in the form of an open account, sometimes the note of the purchaser was taken, and often they took the notes of third persons.Sometimes they took in exchange for new work old carriages, wagons and cutters, which, after being repaired, if repairs were required, were sold by the parties in the manner above mentioned.Each of the parties made collections from time to time.No joint books were kept by the parties, but each party kept accounts in an informal manner.The plaintiff's intestate kept the most complete accounts.It appears that settlements were had between the parties from time to time prior to October, 1871, but the full particulars thereof are not given.It seems also that certain transactions were, prior to said time, settled by the parties, but no record thereof was made.On October 24, 1871, it is conceded that a settlement was had between the parties, the full extent of which is a matter in dispute.All of the settlements referred to seem to have been made in this wise: Each of the parties placed a sum of money on the table, and as they went over the items they passed the money "from one to the other as the balances vibrated back and forth."The plaintiff's intestate claimed that at the time of these settlements he had his book before him; and in the presence of the defendanthe marked the items settled with a "paid" mark, which he describes.Sometimes he took notes in lieu of money on these settlements.The defendant says that at the settlement in 1871the plaintiff's intestate "read verbatim" to him from his book of work sold, and that he took it down, after which they passed the money back and forth as before stated, and, as each item was settled, he marked it "Rec." opposite the item, and no items except those so marked were then settled.Some, if not all, the matters not included in the settlement of October 24, 1871, including work sold between that date and January 1, 1872, were settled from time to time prior to January 1, 1872.In 1884, and after this suit was begun, an attempt was made by the parties to adjust these matters, which, while it was never fully completed, seems, with few exceptions referring to credits, to have been mutually acceded to as being correct as far as it went.One of these exceptions is a claim made by the defendant for "profits;" that is, he claims there should be added to each item of credit for ironing an additional sum, which he claims as profits.The plaintiff's intestate denies this claim, and insists that each item of credit for both wood and iron work included all the profits to which each was entitled.Another claim made by the defendant is for interest on yearly balances found due him on this accounting, also for interest on notes taken by the plaintiff's intestate, and which he claims has not been accounted for.The defendant also contends that he is not bound by the adjustment made in 1884.

II.The defendant's counsel in argument severely censures the decedent, as well as the plaintiff, on account of the disappearance of certain books; also because of the mutilation of a book.We have read the testimony relating thereto with care, and we are unable to find in the record any grounds for believing that the intestate or the plaintiff acted in bad faith regarding said books, or purposely mutilated them, or caused their disappearance.This much, we think, should be said in justice to the parties and their counsel.

III.The defendant claims over two thousand dollars as profits on his ironwork, which he contends should be credited on his account.A careful consideration of all the evidence satisfies us that this claim should be rejected.There is no...