50 P.2d 933 | Kan. | 1935
The opinion of the court was delivered by
This was a suit for an accounting and dissolution of a partnership. Plaintiff appeals from the judgment of the trial court.
Plaintiff, Jacob B. Gelphman, and the defendants, three brothers, ivere engaged in the coal and junk business at Iola for the past twenty years. The partnership owned certain lots which were held jointly by the four partners. One lot was held in the name of two of the defendant partners. There is no contention, however, that all of the lots are not in fact the property of the partnership. The
The issues were joined under the allegations of a petition, answer and reply. Briefly stated, the petition in substance alleged that each of the four partners held an undivided one-fourth interest in the partnership. The petition asked for an accounting, dissolution and for such relief as would be proper under all the circumstances. The answer in substance was that an accounting would disclose that nothing was due and owing to plaintiff, that the present market value of the partnership property was about $11,000, and its liabilities about $5,000, and that an accounting would disclose that all of plaintiff’s interest in the partnership had been wiped out. Defendants prayed for accounting, dissolution and for judgment decreeing plaintiff to have no right or interest in the partnership assets and that plaintiff be required to execute and deliver to the defendants a conveyance of all of his interest in the real estate. The prayer of defendants’ answer was for such relief as to the court seemed just and equitable in the premises. The reply consisted of a denial of the allegations of defendants’ answer which were at variance with the allegations of the petition and stated that the value of the partnership property was approximately $20,000, and its liabilities less than $5,000, and that a proper accounting would show plaintiff’s interest to be in excess of $3,000.
The trial court appointed a referee, who made findings of fact and conclusions of law. It is considered unnecessary to set out those
Plaintiff filed exceptions to the findings of fact and conclusions of law, and also a motion asking for substituted findings of fact and conclusions of law. The exceptions and motion were overruled, except as to finding of fact number thirteen, which was:
“The referee finds from the evidence introduced that the good will of said business is without value.”
The memorandum of the trial court as to this item was that the partnership was a going concern and “that the value of the property as a going concern, including good will, is reasonably worth the value of $1,000.” The referee was ordered to make this and his other findings conform thereto. Thereafter the trial court adopted amended findings of fact and conclusions of law, and they were made a part of the journal entry. In the journal entry the finding as to good will reads :
“The referee finds from the evidence introduced that the good mil of the said business is of the value of $1,000.”
On the findings of fact and conclusions of law made by the referee, as amended, judgment was rendered. It allowed plaintiff a small money judgment and directed defendants to pay the money into court, and also ordered plaintiff to execute and deliver a deed to defendants covering his one-fourth interest in the partnership real estate. The judgment further provided that in the event such deed was not delivered within ten days after defendants paid the money into court, the judgment should constitute a good and sufficient conveyance of plaintiff’s interest in the real estate. It further provided that all of plaintiff’s right, title and interest in and to the personal property of the partnership should be transferred to defendants, upon the payment of the money judgment into court.
From this judgment plaintiff appeals. His contentions of error may be summarized under three propositions:
First, the partnership property, real and personal, was evaluated upon the basis of a bankrupt concern instead of being evaluated as a going concern.
Second, the referee and the court erred in finding that defendant partners had advanced certain moneys to the partnership which had not been repaid.
Third, all of the property should have been sold and the net proceeds distributed in accordance with the interest of each partner.
1. Under the first contention of error we shall consider the value placed on the real estate. Plaintiff fixed the value at $5,000. Mr. Bowlus, a banker at Iola, a witness for defendants, stated that a financial statement given to his bank in March, 1933, by the partnership estimated the value of the real estate at $1,500. He stated that he was familiar with the real estate and believed under existing conditions $1,500 would be a fair average estimate of. the value. John Reuter, who had been in the real-estate business in Iola for thirteen years, stated that he had examined the real estate owned by the partnership. He placed a value on each piece separately. His total estimated value for all the real estate was $2,200. The referee adopted this valuation of $2,200. Appellant stresses the fact that plaintiff’s testimony further showed that the assessed valuation of all the real estate was only $100 less than the $5,000 valuation placed thereon by plaintiff. He further urges the fact that the real-estate agent testified that he had not personally sold any lots equipped and used for similar purposes, and that he did not know of other lots in Iola available for similar use. The record does not disclose that any objection was made to the testimony of the real-estate agent. The weight to be given his testimony was for the determination' of the referee. There still remained the testimony of Mr. Bowlus, which placed the value at $1,500. It should be noted that the question whether the partnership was bankrupt or a going concern did not arise in connection with the valuation placed by any of these witnesses on the real estate. The value of the real estate was determined upon conflicting testimony, and the finding of the referee is conclusive here.
We shall turn next to the value placed upon equipment and stock on hand. Here again we have a conflict of testimony. The additional complaint, however, is that defendants’ witnesses evaluated this property on the basis of a bankrupt concern instead of evaluating it as a going concern. This is a more serious question and requires some examination of the record. Mr. Harry testified that he and Burnside made an appraisement of this property in 1933. Harry was vice-president and assistant secretary of the Steel Products Company of Iola. Burnside was a structural engineer for the same company. Harry stated that he was familiar with the market quotations and prices of scrap iron, scrap rope and other materials
Burnside identified an exhibit containing the itemized appraisement and stated that it represented the value of the partnership plant as appraised by him and Harry, and that it was' a fair and reasonable value of the real and personal property of the partnership. He stated that their appraisement concerned only the physical value of the material and did not take into account the value of the business as a going concern. The foregoing testimony of these witnesses is not set out in question and answer form. This evidence is a summary of what appears in the abstract and counter abstract.
We construe the testimony of these witnesses to be that the cash market value of this property is the same, on immediate sale, whether the partnership is bankrupt or whether it is a going concern. Since the property was not sold, the evidence was competent because it fixed the present cash market value of the property. A determination of its cash market value 'was necessary as a basis for immediate final settlement between the partners. Appellant’s contention is that the valuation of the partnership property as a going concern would be higher than the valuation of it as a bankrupt concern. There may be merit in the contention as an abstract proposition. We are obliged to deal with the evidence. There is ample evidence' here that the value of this kind of property is the same whether sold immediately as the property of a bankrupt concern or immediately as the property of a going concern. In fact, we find no evidence to the contrary. There was, therefore, a basis for the evaluations made by the referee and approved by the court.
2. Appellant’s second contention of error is that the referee and the court erred in finding that defendant partners had advanced certain moneys to the partnership which had not been repaid.
3. Appellant’s third contention of error, as previously stated, is that all of the property should have been sold and the net proceeds distributed in accordance with the interest of the partners.
Diligent search of the record discloses no objection to the method of distribution employed. Judging from the entire procedure and the introduction of evidence on values, it appears that this very method of settlement was contemplated by all parties concerned. This case was plainly tried upon the theory of fixing the value of the partnership property as a basis for distribution. No objection appears to have been made concerning that theory. This court has previously held that after a case has been tried upon a definite theory, appellant cannot here raise any question as to the correctness of such theory. (Abramson v. Wolf, 138 Kan. 856, 28 P. 2d
Appellant urges that the case of Hatfield v. Tucker, 115 Kan. 367, 223 Pac. 291, is authority for the proposition that partnership property must be sold and the proceeds thereof distributed. With that contention we cannot agree. That case in no manner conflicts with the rule announced in the cases of this court. In the Hatfield case the petition prayed for an accounting and for the sale of the partnership property. The parties in that case stipulated that all the partnership property should be sold, and jointly requested the court to order the sale. In the instant case we fail to find a request by either party to sell the property. The prayer, while not a part of the pleading, shows that plaintiff did not ask for the sale of the property, but asked for such relief as would be proper under all the circumstances. Defendant asked for such relief as was just and equitable in the premises. We. find no reversible error in what the court did in answering the prayers of the parties.
Appellees call our attention to alleged typographical errors in amounts contained in certain findings made by the referee and ask this court to make the necessary corrections. In the light of the fact that some of the changes requested do not figure out exactly as indicated by appellees, and are generally challenged by appellant, we prefer to direct the trial court to make corrections of such typographical errors. It is so ordered.
The judgment is affirmed with directions as indicated. .