771 P.2d 652 | Or. Ct. App. | 1989
Plaintiff brought this action for an accounting of his interest in a partnership with defendant. In an earlier appeal, Deyoe v. Holloway, 66 Or App 352, 674 P2d 1187 (1984), we reversed the trial court’s denial of an accounting and remanded with instructions on how to interpret the partnership agreement in calculating the amount due on the accounting. No petition for review was filed; on remand, the trial court followed our instructions. Plaintiff now takes exception to our interpretation of the partnership agreement, which has become the law of the case and cannot now be disturbed. Friendship Auto v. Bank of Willamette Valley, 300 Or 522, 526 n 2, 716 P2d 715 (1986); Public Market Co. v. Portland, 179 Or 367, 170 P2d 586 (1946).
Defendant cross-appeals, assigning error to the trial court’s award of interest on the amount found to be due to plaintiff. In an accounting among partners, interest is available only if a partner violated a fiduciary duty. Starr v. International Realty, 271 Or 396, 407, 533 P2d 165 (1975); Liggett v. Lester, 237 Or 52, 61, 390 P2d 351 (1964). No breach of fiduciary duty on the part of defendant is alleged. The judgment must be modified to exclude prejudgment interest.
Affirmed on appeal; judgment modified on cross-appeal to exclude prejudgment interest and affirmed as modified.
