223 N.W.2d 338 | Mich. Ct. App. | 1974
MAYNARD
v.
DORNER.
Michigan Court of Appeals.
Edward Sanders, for plaintiff.
Garvey, Kreis & Silverman, for defendant.
Before: GILLIS, P.J., and HOLBROOK and VAN VALKENBURG,[*] JJ.
Decided May 30, 1974. 53 Mich. App. 568.
SUPPLEMENTAL OPINION
*8 HOLBROOK, J.
This case was remanded to the trial court for further and more explicit findings of fact and conclusions of law. 53 Mich. App. 568, 575; 220 NW2d 161, 165 (1974). This the trial court has done.
The facts of the present case are set out in the previous opinion. In pertinent parts, the trial court has found:
"* * * That the evidence conclusively shows that the various businesses operated by the defendants were in fact operated by both of them as a husband and wife team.
"* * * That the court does not believe the testimony of the defendant, Bonnie Dorner, as she denies any participation in said businesses contrary to the proofs offered but admits having knowledge of the various marketing and promotional schemes used in the operations, the general day to day conduct of the businesses and the specific prices of the product involved.
"* * * That the proofs show that defendants held out to the general public that the businesses operated by them were in fact operated by them jointly, notwithstanding defendants' attempted use of various assumed names and company designations.
"* * * That the court finds that the businesses conducted by defendants were in fact conducted as a husband and wife partnership and that the defendant Bonnie Dorner's denial of any interest in the businesses is not substantiated by the evidence, there being a common interest in the businesses, firm bank accounts, commingling of funds and property and participation by the defendant Bonnie Dorner in the affairs of the businesses.
"* * * That the court finds that the defendants Charles R. Dorner and Bonnie Dorner operated the businesses as a partnership and that the same was with the full knowledge and consent of the defendant Bonnie Dorner.
"* * * That the defendants allowed the general public and the dealers of the product to believe that a partnership existed."
*9 The court made the following conclusions of law:
"1. That the businesses operated by defendants were in fact a husband and wife partnership and resulted in joint liability in accordance with MSA 20.16(1),[1] see also Moore v DuBard, 318 Mich. 578; 29 NW2d 94 (1947).[2]
"2. That the plaintiff is entitled to the sum of $7,150.00, being monies of the plaintiff which were converted by defendants.
"3. That the plaintiff is entitled to a commission of $1,878.00, freight charges in the amount of $138.32 and refund of a check in the amount of $479.76.
"4. That the plaintiff is entitled to interest computed as being $2,740.82.
"5. That plaintiff's claim of $5,169.60 for replacement cases and $20,000.00 loss of business be denied."
It appears that the court found a partnership by estoppel. After reviewing the record we cannot say the findings are clearly erroneous, Tait v Ross, 37 Mich. App. 205; 194 NW2d 554 (1971), cert den 407 U.S. 921; 92 S. Ct. 2462; 32 L. Ed. 2d 806 (1972); Pepper v Naimish, 39 Mich. App. 497; 197 NW2d 866 (1972), and we will not reverse as we cannot say that the facts clearly indicate that an opposite result must be reached. Leidig v Rockwood & Co, 48 Mich. App. 248; 210 NW2d 257 (1973).
Affirmed. Costs to plaintiff.
All concurred.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] MCLA 449.16; MSA 20.16 is the Michigan analogue of § 16 of the Uniform Partnership Act which refers to "Partner by Estoppel".
[2] In Moore v DuBard, 318 Mich. 578, 581, 20 NW2d 94, 95 (1947), the sole question before the Court was whether the plaintiff had sustained his burden of proving the existence of a co-partnership. After an extensive review which found some indicia of partnership and others absent, e.g., no certificate of partnership was filed, the Court concluded that the plaintiff had not sustained his burden of proof. Cf. Morrison v Meister, 212 Mich. 516, 519; 180 N.W. 395, 396 (1920); Thurston v Detroit Asphalt & Paving Co, 226 Mich. 505, 508; 198 N.W. 345, 346 (1924); Western Shoe Co v Neumeister, 258 Mich. 662; 242 N.W. 802 (1932), and Lobato v Paulino, 304 Mich. 668; 8 NW2d 873 (1943). See 59 Am Jur 2d, Partnership, § 67 et seq., p 982.
