191 Cal. App. 2d 272 | Cal. Ct. App. | 1961
Defendant appeals from an adverse judgment in a partnership accounting action. Respondent, a trenching machine operator, and appellant, an engineer and licensed general contractor, carried on a trenching and excavating business from August 1, 1956, until October 9, 1957. The agreement was oral, but the parties executed a written dissolution agreement. Aside from an accounting to determine the gross income and operating expenses, the principal issue raised by the pleadings was whether the sum of $130 per week paid to respondent constituted wages for his services or was simply a drawing account which would entitle appellant to an equal amount. The dissolution agreement provided. .it
Any contention that the failure to comply with the accounting requirement destroyed the efficacy of the dissolution agreement is further dispelled by a stipulation signed by counsel for appellant and respondent settling most accounting issues. The stipulation was made after the answer had been filed and the issues joined. It fixed the amount of gross income and of the operating expenses exclusive of any amount due the partners. The effect of this stipulation was to resolve the accounting differences. The remaining questions were essentially matters of law.
Appellant next complains that at the time the stipulation was signed, respondent’s demand was only $4,067.33, and that the trial court exceeded its authority by thereafter allowing respondent to amend his complaint to conform to the proof which resulted in a judgment of $5,133.23 plus interest. Appellant’s position is untenable for the following reasons: (a) The stipulation does not purport to determine the amount due either partner but simply to fix the gross income and operating expenses. It leaves for the court’s decision the question of the rights of the partners, (b) The prayer of the complaint reads as follows: “2. For the sum of $4,067.33 plus interest thereon at the legal rate, from September 18, 1957, to the present date, and thereafter to the date of judgment herein, plus such additional sums as shall be found necessary to be paid to plaintiff to equalize and balance accounts of said partnership.” Appellant was aware of the prayer of the complaint, yet he did not condition his stipulation upon the amount of respondent’s claim, (c) The trial court has inherent power to allow an amendment of pleadings to conform to proof unless the amendment introduces a
Appellant finally urges that there is no evidence in the record to support the finding that “the gross revenue and income of said partnership business over and above amounts paid out for operating expenses, including the amount of $6,557.09 found to have been paid to plaintiff, Robert Larkin, on account of wages, were received and retained by E. Gr. Jesberg.” Appellant states that “ [n] either documentary or [sic] oral evidence was introduced to prove that defendant received and retained the sum of $6,557.09. . . .” We do not read the findings as does appellant. The court’s language appears to include the $6,557.09 as a part of the total amount paid as operating expenses. Such an interpretation is reasonable and it tends to support rather than defeat the finding. In Richter v. Walker, 36 Cal.2d 634, 639 [226 P.2d 593], the court said: “ As to the principles governing appellate courts in considering the adequacy of findings to dispose of issues and support a judgment it is a general rule that ‘Even though a finding might have been more clearly phrased, it is sufficient if its language is clear enough to indicate what the court intended; . . ” Furthermore, in another finding the court clarified the ambiguity. It specifically found the $6,557.09 to have been paid to respondent as an expense so that appellant was not charged with the same amount twice. The court also made findings itemizing the total income, the total expenses, the credits of the partnership, of the individual partners, and repeated the items by way of recapitulation in the conclusions of law. An uncertain finding will not defeat a judgment if other findings supply the deficiency or clear up the ambiguity. As was said in Richter v. Walker, supra, at page 639, “. . . if there are findings sufficient to support the judgment, they are not vitiated by the tinintelligibility of others.” (See also Holmberg v. Marsden, 39 Cal.2d 592, 596 [248 P.2d 417]; Aguirre v. Fish & Game Commission, 151 Cal.App.2d 469, 474 [311 P.2d 903].) Counsel for appellant also objects to the finding upon the ground that respondent failed to trace the partnership funds. He argues that in the absence of some showing of what happened to the money there is no
Judgment affirmed.
Draper, Acting P. J., and Shoemaker, J., concurred.
Assigned by Chairman of Judicial Council.