176 P. 802 | Or. | 1919
Lead Opinion
This is a suit for an accounting as to moneys received by one partner after a dissolution of a partnership on contracts and notes made before the partnership'was dissolved. The complaint alleges in substance that said commission had been earned by reason of the sale of real and personal property, and to secure this commission an interest in certain promissory notes executed by the purchaser of said property had been assigned to the partnership; that at the request of such purchaser and the defendant, W. E. Leffel, a deed to the property was made to the purchaser’s wife, and that such conveyance was made under the terms and conditions of the original contract with the purchaser; that a commission was paid to the defendant W. E. Leffel, and that such commission was paid under and by virtue of the original con
“Section 725, L. O. L., states the cardinal rule of evidence in the following words: ‘ Evidence shall correspond with the substance of the material allegations, and be relevant to the questions in dispute.’ Each party shall prove his own affirmative allegations (Section 726, L. O. L.) that are denied by the other party. A plaintiff can recover only upon the allegations of his complaint. The facts constituting his cause of action must be stated in his complaint, and these allega*350 tions lie must prove, if they are denied. If lie fails to prove any material allegation of his complaint that has been put in issue by an answer, he must lose.
“In Union St. Ry. Co. v. First Nat. Bank, 42 Or. 611 (72 Pac. 588), the rule is stated thus: ‘It has often' been held by this court that the plaintiff must prevail, if at all, upon the matters alleged in his complaint. # * ’
Affirmed and modified as to costs.
AFFIRMED AND MODIFIED.
Rehearing
Former opinion adhered to on rehearing September 9, 1919.
On Rehearing.
(183 Pac. 756.)
For a general statement of the facts of this case reference is made to the former opinion of this court herein: Runnells v. Leffel et al., ante, p. 342 (176 Pac. 802).
The vital issue, as there disclosed by the complaint, and denied by the answer, is this: Was the conveyance to Mrs. Higinbotham, executed on August 6, 1917, made to her in consummation of the original contract between Mays and Mr. Higinbotham, and at the request of the latter and Leffel, or was it a new and independent deal? The evidence of all the parties who participated in the negotiations of July 7, 1917, tends to establish the following facts; that Mays and Leffel had, for some time been importuning Higinbotham to make some payment upon his overdue notes, and without success. On the morning of July 7th, Mays notified the delinquent vendee that he must either make a substantial payment or that ejectment
The plaintiff does not undertake to meet this testimony with substantive evidence of any other character, but contends that since Mays always urged that his net price for the land was $39,000, and that he had received that amount, he must necessarily credit Mrs. Higinbotham with the $9,000 in payments which had been forfeited by her husband, and that her relationship to the former vendee, and the circumstances surrounding the transaction, indicate that the second sale, to the wife, was a deceitful subterfuge, perpe
It follows that we must adhere to our former opinion. FORMER OPINION APPROVED.
Dissenting Opinion
Dissenting. — This is a suit for an accounting of the partnership transactions between A. M. Bunnells, plaintiff, and W. E. Leffel, defendant, who were partners in the real estate business under the firm name of Leffel & Bunnells, from September, 1915, to the last of December, 1916. Each had a one-half interest in the business. There was no written agreement of partnership.
Defendant states that the partnership arrangement was made by degrees. Mr. Bunnells kept a law office during the time. As might well be expected, differences arose in regard to expenses, and after the dissolution there was a disagreement as to the division of commissions.
A rehearing has been granted in this case upon a question of fact. The former opinion appears in 176 Pacific Beporter, 802. Soon after the time of the partnersMp agreement the firm obtained a contract or option for the sale of 2,400 acres of land near North Powder, Oregon, for one C. B. Mays for the price of $39,000. All over that amount obtained for the land was for the benefit of Leffel & Bunnells. About November, 1915, a sale of the land was negotiated by the
‘ ‘ That the intent of this agreement is that the party of the first part (C. B. Mays) is the owner of $14,500 principal of the above notes, and that parties of the second part (Leffel & Bunnells) are owners of - $5,500 principal of the above notes.”
About the time of the sale of the ranch, Mr. Mays sold some livestock and other personal property to Mr. Higinbotham, amounting in value to seven or eight thousand dollars. The sale of the personal property is not involved in this suit except as it may have a bearing upon the transactions relating to the real estate. Leffel & Bunnells were not interested in the sale of the personalty.
The matter drifted along until July, 1917, without any payment of principal or interest being made on the notes. Efforts were made by C. B. Mays and Leffel & Bunnells to obtain a loan for Mr. Higinbotham in order to enable him to pay twenty or twenty-five thousand dollars of the notes. This was without success. An effort was also made to interest Maggie Higinbotham, wife of G-. P. Higinbotham, to secure the money for her husband. She was the owner of a valuable ranch in Hmatilla County. About June, 1917, Mr. Mays, after repeated requests made at different times, insisted that the interest should be
O. B. Mays, as a witness for plaintiff, relates the transaction at length. He states that—
“I talked with Mr. Higinbotham somewhere on the street concerning it, and he told me that his wife would not help him out on it, and asked me to give him a little more time, and talked on just like he always did, —started to lie to me about it, just the same as he always did, and I told him I had heard that kind of an harangue long enough, and there was only two*357 things to do, — to pay me or I would start ejectment proceedings.”
At that time, Mr. Mays informed Mr. Leffel of his conversation with Mr. Higinbotham. Mr. Leffel said he would go hack to the hotel and have a talk with Mrs. Higinbotham, and see what he could do. Mr. Mays testified further:
“He [meaning Higinbotham] agreed right there to give me hack the paper. * *
“He agreed to give me hack the place. * * I agreed to take it back, because he didn’t feel that he ought to go to any extra expense on it, and he didn’t know that I ought. That is the amount of it. * * ”
Mr. Mays further stated:
“Eight there and then, we agreed to that kind of an arrangement, and he, — I think we walked, — I don’t know whether we walked right on to Slater’s office,— Well, he said there he was willing to turn the place back to me; that he could not do anything, and his wife wouldn’t help him. So then, — well, it is possible Leffel was along then I don’t remember just when we did talk about it, but he and I had talked about it, and he said he would go back to the hotel and have a talk with her, to see if she cared to do anything about it going through, and if not, he thought the best thing for me to do was to step in and get them off the place; they weren’t doing anything any way. * *
“Yes, he [Leffel] told me, about dinnertime, — was about the time we had this talk, that the old lady absolutély refused to help the old gentleman, and I think then Leffel and I talked out the conversation he had with them at the ranch. I think that was then too. * *
“As well as I remember it was agreeable to Leffel for me to take these papers back, — take this ranch back, I mean and my contract and things with this land, and he went and had a talk with her and .came back to me during the afternoon. I, — as I said a minute ago, I don’t remember what he and I did then,*358 but I know I talked with Leffel right away after talking with Higinbotham. He came to me again and told me, and whether I went on up to the hotel with him or not, I can’t remember, but we walked about while talking these different things, and he told me that there was absolutely no use trying to do anything further about it, and that he was perfectly willing for me to take the place back, and then later, — it seems to me later in the day, — I didn’t see Leffel for quite awhile, and he talked with Mrs. Higinbotham, and he came back and talked to me afterwards, — if as I had taken the place back from Mr. Higinbotham, if I would consider selling it, — something to that effect, and I said, ‘Tes, I would sell it to anybody, so I got thirty-nine thousand out of it’ and a little later he came back and * * he says ‘Your ranch is sold', for I will sell it to the old lady,’ — something like that. I can’t remember the exact conversation. * *
“Any way after Higinbotham gave me these papers, we went up to Slater’s office. - I stated it to him like I would to any other man, — if she wanted that ranch, let’s get busy while she was in the notion. So we went up to this office, and Higinbotham gave me his papers, —he had a copy of this contract still, and I gave him the notes, — I think that’s it, — I gave him the notes about that time. ”
To the question:
“State whether or not you had possession of the notes of Gr. P. Higinbotham at the time you got that fifteen hundred dollar check from Mrs. Higinbotham. ’ ’
This witness answered:
“No, because we had fully decided and settled that part of it and then later, — some time a little later, we made an agreement there, and I think she paid me fifteen hundred dollars then, but I don’t know for sure if she did right then, but she paid me the balance of it at the time the deed was made any way, — the fifteen thousand.”
And at the time of the execution of the deed, Aug. 6, 1917........................... 15,500
And the balance of the $39,000, in notes and the mortgage for...........;.........22,000
Total.............................$39,000
The $1,500 note of Mrs. Higinbotham was, pursuant to an understanding with Mr. Mays, given to W. E. Leffel as for a loan to Mrs. Higinbotham. In addition to that Mr. Mays paid Mr. Leffel by check $4,400, making with the amount of $400 theretofore paid to Leffel & Runnells, $6,300, besides the $100 of expenses, paid by Mays in settlement of the commission and interest on the portion of the notes which Leffel & Runnells owned, and which were deposited with Lenhart, as shown by the agreement of December 11, 1915.
Mr. Mays also testified as follows:
“Q. And after you turned the land over to Mr. Higinbotham, or after Mr. Higinbotham went on the land and took possession of it, did you again take the land and use it yourself?
“A. Well, I took the land back, but I didn’t use it.
‘ ‘ Q. What do you mean by taking it back, Mr. Mays ?
“A. I mean that Mr. Higinbotham could not pay for the land, and turned it over to me, — turned the papers over to me. That is what I mean.
“Q. When?
“A. Well, some time in. July.
“Q. Who was present?
“A. That took place at Mr. Slater’s office, the same time I mentioned before when were in his office there at that time.
“Q. Mr. Higinbotham, Mrs. Higinbotham, Mr. Leffel and Mr. Slater and yourself, you mean?
“A. And my wife.”
“A. Prom the time Mr. Higinbotham took charge of the land, according to his contract, until the time that he turned the papers back to me, I didn’t have possession of that place or conduct it.
‘ ‘ Q. But since he turned the papers back have you had possession?
“A. Well, I had possession of the papers. Thé man hadn’t moved off and I hadn’t moved on.”
In regard to the Higinbotham notes, Mr. Mays stated:
“Q. In other words, Mr. Mays, I mean, did you at that time and shortly prior to that time, figure up the interest that had accrued on these notes, and , know about what that interest was at that time?
“A. Yes, I knew at that time about what it should be.
“Q. Well, did you at the time you conveyed to Maggie Higinbotham receive more than the face of these notes ?
“A. More than the face of these notes mentioned here?
“Q. Yes.
“A. Yes.”
Upon being asked when title to the land actually passed from him, Mr. Mays stated that he never did give title to G-. P. Higinbotham; that the title actually passed in the fore part of August, 1917, when his wife and himself and Mr. Leffel, Mr. Slater, Mrs. Maggie Higinbotham and Gr. P. Higinbotham were present.
“A. In J. D. Slater’s office is where I did all of the talking. * * ,
“Q. At that time did you pay any commission for the selling of the property? * *
“A. I paid to Leffel the difference in what I asked for the farm and what he sold it for. * *
*361 “Q. Now when was yon asking that certain price for the land&emdash;1915 when the contract was made ?
“A. I didn’t ask any different price on the land at any time to different persons.
“Q. In 1915 what was the price you fixed on the land, or the property to be sold?
‘•‘A. Thirty-nine thousand. * *
“Q. And subsequent to that time and up to the time when you finally made a deed, conveying that property to someone else, did you ask any other or different price than the thirty-nine thousand?
“A. No.”
Mays also states that he lost in the transaction as some of the cattle, which he had contracted to Higinbotham and the increase thereof, died. It appears that Mr. Mays did not make a close estimate of the interest on the Higinbotham notes.
As we figure, the principal and interest to August 6, 1917, amounts to $41,080. Adding the amount paid by Higinbotham, $9,000, makes a total of $50,080, the original price of the land $45,000 and interest.
Mr. Mays actually received of Gr. P. Higinbotham ................................$9,000
Of Mrs. Maggie Higinbotham................ 39,000
Total amount received . $48,000
Amount of interest actually deducted in the final settlement...................... $2,080
Out of the total amount received by Mr. Mays he paid as commission at the time of the contract with Gr. P. Higinbotham........ $ 400
Note of Mrs. Higinbotham.................... 1,500
Checks ..................................... 4,400
Total amount of commission including the expenses ................................ 100
Makes ............................$6,400
Tie amount deducted on tie interest of tie notes for tie commission was $376.12.
It is sometimes said tiere is veracity in figures. Taking tiese figures, tiey clearly siow tiat Mrs. Higinbotiam not only received tie full benefit of tie $9,000 paid by ier iusband on tie ranci, but did not pay tie full amount of tie interest on tie balance. Mrs. Maggie Higinbotiam was a witness for defendant. Sie fixes tie time of making arrangements for ier taking over tie ranci definitely as July 6, 1917. Sie testified to tie effect tiat sie was requested by Mr. Mays to assist ier iusband financially in tie purciase of tie ranci about a week before tie time tiey came to La G-rande; tiat sie told Mr. Mays tiat sie would not give a mortgage on ier ranci at Echo, and tiat at La Grande Mr. Leffel endeavored to .get ier to assist ier iusband, and’she refused; tiat Mr. Leffel first suggested to ier to buy the place on tie 6th of July, 1917; tiat sie did not know of any final understanding between Mays and ier husband as to what was going to happen to her iusband at tiat time. Sie states that tie transaction was in substance as follows: “Mr. Mays said he would deed me tie ranci if I would give him $15,500 casi, and he would take my notes for tie balance;” tiat tiat was tie way the deal went through; tiat sie gave him a note for $1,500 at tie time (this is tie note to Leffel, as we understand) and made a cash payment of $15,500, and gave a note and mortgage for $22,000; tiat ier iusband had nothing to do witi the $15,500, but sie thought tiat he signed
“Well, I understood that, — from Mr. Higinbotham, he wanted me to kind of help Mm out on the land. ’ ’
Mrs. Higinbotham understood from Mr. Higinbotham that Mr. Leffel wanted her to come to La Grande on the proposition of making a settlement some way with Mr. Mays; that she never thought of buying the land until the sixth day of July; that the deed of the land was made to her on August 6, 1917; that there might have been something said about what Higinbotham had paid on the land, she did not recollect it; that the $1,500 note was given to W. E. Leffel; that it represented that she borrowed $1,500 from him, “He¡furnished it to Mays”; that her husband was present when Mr. Leffel suggested that she purchase the land; that it was sometime after dinner.
“Q. And did you then go to Mr. Slater’s office and make a contract concerning your buying the land?
“A. After I talked it over with Mr. Higinbotham, I did.”
Mrs. Higinbotham talked with her husband about the advisability of buying the land.
It is the contention of plaintiff, as made by his complaint, that at the request of Higinbotham and defendant W. E. Leffel, O. B. Mays and his wife conveyed the land to Maggie Higinbotham under and by virtue of the terms and conditions of the contract of December 11, 1915, between Mays and Leffel & Bunnells.
After a careful reading and consideration of all the testimony, we are firmly convinced there was only one price and one sale of the land in question. It was agreeably arranged between Mr. Higinbotham and his wife that she should take title to the land and make payment of the balance of the notes and interest given therefor, after a portion of the interest was “knocked off.”
For the notes in question of Gr. P. Higinbotham,
Mr. C. B. Mays received, note of Mrs. Maggie Higinbotham................... $1,500
Also signed by Gr. P. Higinbotham.
And cash of Mrs. Higinbotham.............. 15,500
And notes and mortgage of’Mrs. Higinbotham. 22,000
Total................$39,000
■ "Which was entirely satisfactory to Mr. Mays, and fully satisfied the GL P. Higinbotham notes. Out of this amount received, Mr. Mays paid Leffel on account of the interest of the firm of Leffel & Bunnells, $5,900.
Plaintiff claims in his complaint, and it is supported by the testimony, that the conveyance of the lands by C. B. Mays and his wife to Mrs. Maggie Higinbotham on August 6, 1917, was made under and by virtue of the contract of December 11, 1915, between Mays and Leffel & Bunnells, and in satisfaction of the' notes
The original option or contract for the sale of the land between C. B. Mays and Leffel & Runnells had served its purpose. It had been carried out by Leffel & Runnells in negotiating the sale of the land to Gr. P. Higinbotham, and has no further force or effect. It should not be confounded with the contract of December 11, 1915, as to the ownership of the notes.
Mr. Mays states that he paid Leffel the difference in what he asked for the farm and what he sold it for. Mays states that his price for the ranch, at all the times mentioned, was $39,000 net. Mrs. Higinbotham paid that sum. All agree to that. Then if this was what the land was sold for, Leffel was paid nothing. Mr. Leffel states that Mays ’ price for the land to Mrs. Higinbotham was $33,100, but we take Mr. Mays’ statement in this regard. He appears to be a disinterested witness.
Mr. Mays is a man of business and understood the transaction. He plainly states that his price for the land was $39,000 net, and that he got what he asked; that he made only one price at any time during the transaction. It was impossible for him to make and receive a net price of $39,000 from Mrs. Higinbotham, when he only received from her $39,000, and out of that amount paid as commission $5,900 to Mr. Leffel. That would leave a‘net price of only $33,100. There are several earmarks in the transaction that show that the deal with Mrs. Higinbotham was an adjustment of the contract of December 11, 1915, and settlement of the original deal with G-. P. Higinbotham. Mr. Leffel states in his testimony that when he mentioned the matter of negotiating with Mrs. Higinbotham, be
The contention arises from the fact that Mr. Leffel, no doubt, attempted to make it appear that there was an independent sale made to Mrs. Higinbotham. As soon as Q-. P. Higinbotham indicated to Mr. Mays that if he did not make settlement he would turn the ranch back without expense, Mr. Leffel took it for granted that this was actually done. The change in the deal from Higinbotham to Mrs. Higinbotham was made practically all in one transaction, and as we understand Mr. Mays’ testimony was all consummated in J. D. Slater’s law office. The money collected by Mr. Leffel from Mr. Mays, August 6, 1917, was in satisfaction of the commission earned by Leffel & Bunnells in the sale made to G-. P. Higinbotham, and the defendant Leffel should account to plaintiff Bunnells for one half thereof.
The statement of Mr. Leffel to Mr. Mays, when he said he would go back to the hotel and have a talk with Mrs. Higinbotham and if nothing could be done the best thing for Mays to do was to get them off the place, indicates that no definite action had then been taken to restore Mays to the possession of the land. Nothing was done in regard to taking the “land back” after that until the matter was arranged for Mrs. Higinbotham to take the farm and make the payment. A high rate of interest was provided in the notes, and it may well be that, as the place had run down somewhat, Mays would rather have the $17,000 and secured
It was understood in the partnership arrangement that Mr. Leffel should do the most of the work outside of the office in attempting to make real estate deals, and that Mr. Bunnells should do the office business and assist in closing deals. Mr. Leffel was traveling a great deal during 1916. Made trips to North Powder, Walla Walla, Washington, and elsewhere, and incurred considerable expense.
The partnership trouble seems to have started on account of a purchase of a half interest in 320 acres of grazing land by Mr. Bunnells at $5 per acre. The title was taken in Mrs. Bunnells’ name. Mr. Leffel was in Walla Walla at the time attending to real estate business. Mr. Bunnells telephoned him that he couíd make the purchase, and that he thought it would be a good thing for them to have the land to trade. There is a dispute between them in regard to the matter. We think that Mr. Bunnells led Mr. Leffel to believe that he would make the purchase for the benefit of the firm, and he should be held to his contract. It was a part of the partnership business. The land was sold in a short time for $8.25 per acre. Bunnells should account to Leffel for one half of the profit, $520. It is in evidence that on account of this transaction Leffel said: “He would- get even with Bunnells.” The dissolution of the bonds between the members of the firm was culminated about the time that Mr. Bunnells refused to pay a share of Leffel’s ex
Statement of Partnership Account.
Leffel collected of Mays...................$5,900.00
Bunnells received on land deal............. 520.00
Total..............................$6,420.00
First deducting expenses paid by Leffel..... 489.10
Leaves ..................... $5,930.90
To be divided equally, or each partner’s share ................................$2,965.45
Leffel collected of Mays....................$5,900.00"
Paid out expenses..............$489.10
Amount to be paid Bunnells by Leffel...... 2,445.45
$2,934.55
Bunnells retained profit on land deal........$ 520.00
Amount to be paid Bunnells by Leffel...... 2,445.45
Total amount to be received by Bunnells.....$2,965.45
Plaintiff is entitled to a decree against defendant for the sum of $2,445.45.
The sums of money belonging to defendant Leffel on deposit in the name of defendant’s wife, Alice Leffel, should be subject to the satisfaction Of this decree.
