480 P.2d 137 | Utah | 1971
This case is here on appeal for the second time.
Dear Mr. Guinand:
This letter is to confirm your ownership of an undivided ten per cent (10%) interest in WALTON-KEARNS, a co-partnership composed of Paul T. Walton and Thomas F. Kearns. This interest includes and is not in addition to the various interests from time to time heretofore acquired by you.
Upon termination of your employment with the partnership for any cause whatsoever your interest in the partnership will be determined and discharged as of said time without resulting in a dissolution of the partnership; and such interest as may have theretofore been vested in you in specific properties shall become your separate property, subject to adjustments incident to your proportionate share of the then partnership indebtedness.
(Signed by the partners,
Paul T. Walton and
Thomas F. Kearns.)
In the prior case the defendants had asserted as defenses: (1) no valid contract, (2) no consideration therefor, and (3) the statute of frauds. In the original trial the trial court resolved these issues in favor of
* * *; and the granting of the ten per cent (10%) of the interest in the partnership includes the grant of its assets.
We remanded the case to the district court “for further proceedings in accordance with this opinion,” i.e., for what we assumed to be a determination of 10% of the assets.
Difficulty developed in the “further proceeding” in the district court in that the defendants urged a distinction between the granting of a 10% interest in the partnership as compared to a grant of 10% interest in the assets of the partnership. As stated by them: "* * * our position [is] that plaintiff is entitled not to an undivided ten per cent of all assets of Walton-Kearns, a partnership, but to ten per cent of its assets remaining if it has been dissolved as of the date of termination of plaintiff’s employment with the partnership.” Proceeding from that premise, the defendants advance the further argument that the plaintiff’s entitlement should be calculated under a partnership accounting procedure involving a hypothetical dissolution of the partnership, in which Walton arid Kearns would be repaid their original capital investment, the partnership debts paid, and plaintiff would then get 10% of the remaining assets.
In regard to whatever uncertainties may have existed in the defendants’ letter to the plaintiff, it is pertinent here to repeat this statement from our prior decision:
Both from the letter itself, and from the evidence, the only reasonable inference to be drawn was that the commitment of ten per cent (10%) of defendants’ property was an inducement in connection with the plaintiff’s work for the defendants. * * *
This thought arises: If the 10% interest tendered plaintiff had been subject to the prior repayment of defendants’ contributions, the letter, drafted by the defendants’ own lawyer, could easily have said so.
In issuing the prior decision we thought, and still think, that the statement that: “* * * the granting of the ten per cent (10%) of the interest in the partnership includes the grant of its assets,” was clear enough to indicate that the plaintiff was to have 10% of whatever assets
Further controversy exists concerning aspects of the accounting between the parties, including the award to plaintiff of $2,756.87 as 3% commission on certain sales, less an offset of $1,938 for overpayments on other sales, leaving a net judgment in his favor of $818.87. Defendants attack such findings as being based solely upon the self-serving testimony of the plaintiff and urge the better credibility of other evidence. It is true that the self-interest of a witness may justify disbelief of his testimony.
Regrettable as it is to direct further proceedings in this controversy, there is one matter, of minor importance compared to other aspects of the case, which has not been properly disposed of. The defendants contended that the plaintiff had taken and converted to his own use maps valued at about $700. The record indicates that this contention was rejected without giving the parties an opportunity to present their evidence and have a determination of this issue, which is necessary in order that justice be done thereon. In all other respects the judgment of the trial court is affirmed. (All emphasis added.)
Costs to plaintiff (respondent).
. Prior decision, 22 Utah 2d 196, 450 P.2d 467 (1969).
. That uncertainties in document should be construed against the one who fashioned it, see ibid, prior decision and authorities therein cited.
. See Jensen v. Logan City, 96 Utah 522, 88 P.2d 459, 8 A.L.R. 796.
. See Byram v. Payne, 58 Utah 536, 201 P. 401, 18 A.L.R. 1110, 58 Am.Jur. 489.