196 P. 515 | Mont. | 1921
delivered the opinion of the court.
On April 20, 1914, the plaintiff and the defendants, father and son, entered into a written agreement of copartnership under the name of Silver & Johnston, for the purpose of erecting a school building mentioned in the agreement as the Washington School, in the city of Butte, under a contract awarded to the plaintiff and defendant J. E. Silver by school district No. 1. Under the terms of the agreement the plaintiff and each of the defendants was to contribute in cash one-third of the capital necessary to erect the building, and to give his attention to the care and superintendence of the work. The profits (or losses, if any) of the enterprise were to be shared equally by the copartners. Account-books showing all transactions in the way of purchase of material, etc., were to be kept and to be open at all times to the examination of the copartners or their legal representatives. No one of the co-partners was to contract for, or to participate in, the construe
The building was erected and the contract price paid to the copartnership. The complaint alleges that during its erection the defendants “fraudulently and secretly made a profit and obtained secret rebates from certain persons and corporations selling goods, wares, and merchandise, material and supplies to the said partnership, * * * and used in the erection of the said Washington School,” particularly materials, sash, doors, etc., bought _from the Everett Sash & Door Company at Everett, Washington, and converted them to their own use, on the dates and in the amounts following: July 8, 1914, $165; August 8, $31; December 21, $680.40; January 7, 1915, $601.52. It is alleged that the defendants, aside from these rebates, have in their possession $275 after the payment of all debts of the copartnership, which sum belongs to the plaintiff; that there remains in possession of the defendants a large 'amount of personal property consisting of a concrete-mixer, a spouting system, tools, implements, etc.; and that, though plaintiff has made demand of defendants that they account for and pay to him his share of the said secret rebates, they have refused to do so. The prayer is for a dissolution of the copartner
The defendants in their answer admit that they have in their possession $275 belonging to plaintiff, but deny all the allegations charging them with wrongdoing.
The court found generally that there was due plaintiff from defendant J. R. Silver, Jr., the sum of $757.98 as his share of the rebates, but that nothing was due from J. R. Silver, Sr. It rendered judgment for plaintiff against the former for the amount found due, with costs, and in favor of the latter for his costs. The plaintiff has appealed from the judgment and an order denying his motion for a new trial.
Counsel contend that while the court properly found in favor of the plaintiff as against J. R. Silver, Jr., for the full amount claimed of the rebates, it erred in finding that J. R. Silver, Sr., was not liable in any amount. They also contend that it erred in failing to declare a dissolution of the copartnership and to direct a general accounting and settlement of its affairs.
It appears from the evidence, without dispute, that during the progress of the work, J. R. Silver, Jr., was engaged in conducting a business under the name of Contractors’ Equipment Company, a copartnership dealing in building materials, or acting as local agent for manufacturers of such materials; that he negotiated in the name of the Contractors’ Equipment Company with the Everett Sash & Door Company for the milled materials required by Silver & Johnston for the Washington School, at a stipulated price to the copartnership of $5,912, with the understanding that the Contractors’ Equipment Company should receive from the sash and door company,' in the way of rebates in cash, the difference between the price so agreed upon and what J. R. Silver, Jr., in his evidence stated was the wholesale price; that the Contractors’ Equipment Company was actually paid this difference, amounting to the sum of $1,595.92. In order to fix liability upon J. R. Silver, Sr., counsel for plaintiff sought to show that he was a
It may be remarked that we cannot ascertain from the record 'definitely how the- court, upon +he evidence, arrived at the gross amount of rebates received by J.oR. Silver, Jr., nor upon what principle it charged him with substantially one-half the amount found, instead of one-third, to correspond with the interest of the plaintiff in the copartnership of Silver & John
Contention is made that the court erred in failing to declare a dissolution of the copartnership and to order a general accounting of its affairs, including a sale of its assets and a distribution of the proceeds among the copartners according to their several interests. The complaint does not allege facts
Contention is made that the court erred in refusing to allow plaintiff to introduce evidence to show that J. R. Silyer, Jr., was wholly insolvent at the time of the trial. There was no error.
The judgment and order are affirmed.
'Affirmed.