Perkins v. Lightfoot

LESLIE, J. In the fall of 1923 the plaintiff, W. O. Lightfoot, and the defendant, Frank Perkins, formed a partnership for the purpose of dealing in cotton. At the end of the season the partnership was dissolved, and Perkins made an income tax report of the partnership affairs. The report showed a profit of $1,414.48. This was divided between the partners. In April, 1927, a revenue agent called on Perkins for a recheck of the partnership account, and demanded a tax on income not evidenced in said report. Upon a recheck, the agent demanded payment of tax-es on income of approximately $17,000. To this the defendant, Perkins, protested, but paid an additional tax of $196.88, which was submitted to the Department with a report by the revenue agent, signed by him, but not the defendant. Information of. this report coming to the partner, Lightfoot, he instituted this suit, demanding an accounting for undivided profits, and specifically alleging that the net income of the business was $11,843.05, of which he had participated in $1,414.48 thereof; and he more specifically alleged and amplified the same in a supplemental petition, that the defendant, Perkins, converted 25 bales of cotton (of a certain batch of 43 bales) of partnership property to his use, and the plaintiff sought a recovery for his part of this 25 bales to the amount of $1,875. Among other defenses, the defendant, Perkins, denied that any profits had remained undivided, and, while admitting the paymefit of the $196.88 on the alleged unaccounted-for profits, he protested that the firm made no such additional income justifying the demand of the income tax man, and claimed' that such demand was merely based upon the fact of the defendant’s inability to produce, at the recheck of accounts, certain checks and drafts amounting to $17,238.82, but which he had on hand at the making of the first report. The defendant’s theory may best be gathered from liis testimony upon this trial, especially that portion pertaining to his settlement with the revenue agent: “He (agent) cheeked around there and looked and then he says ‘You haven’t got enough withdrawals on Perkins and Lightfoot account.’ I says ‘I don’t see how you figure it.’ He says ‘You lack $17,000.00 having enough checks and you will have to pay on $17,000.00 additional income.’ I says ‘No, I don’t owe any $17,000.00' additional income. I lost money all the year, I haven’t made any money out of it.’ He says ‘Well, that’s what it looks like to me.’ I says T will have to check it again.’ He says ‘I’ll tell you what I will do. I will compromise with you, you pay $9,000.00 additional tax.’ That made 10,400 and some odd dollars, counting the $1,414.00 that was first rendered. So I said Well, how much will that be?’ And he said, ‘It will be $196.00’. Well,’ I says, T hate to pay on something I don’t owe on and I know I don’t owe that.’ He says Well, if you appeal it you will have to pay on $17,000.00.’ So I finally settled with him to get rid of it. He said that it would be the best way out of it. and I paid it.” The ease was submitted to the jury upon special issues, and upon the answers a judgment was rendered in favor of the plaintiff in the sum of $2,762.18. The defendant has appealed, and the parties will be referred to as plaintiff and defendant. . By ten propositions the defendant contends that the judgment of the trial court is erroneous. The first proposition complains that the court erred in excluding from the jury a portion of W. E. Tyler’s testimony wherein he stated, “I further know that he didn’t make any money” — referring to defendant. It was objected to as the opinion of of the witness. It came after he had testified fully as to such facts as'lay within his knowledge, as well as the contents of his bank records. It was merely the opinion of the witness, volunteered upon the issue that the jury was sitting to determine. There was no error in excluding the testimony. McCown v. Terrell (Tex. Civ. App.) 40 S. W. 54; Pioneer, etc., Co. v. Peck, 20 Tex. Civ. App. 111, 49 S. W. 160. The second proposition complaining of the exclusion of certain testimony is overruled, for the reason that the record discloses that the same testimony was admitted without objection under a different line of questions at various times during the trial. Further, the proposition is not briefed according to the rules. It is not followed by any statement, etc., as required by the rules, and calls for no consideration. The third proposition complains of the submission of issue No. 1, which is as follows: “At the close of the partnership, did the defendant have in his possession of the partnership assets, forty-three bales of cotton which had theretofore been purchased with partnership funds ?” To this the jury- answered “Yes.” Defendant complains that the answer is not supported by the evidence, and that the court erred in predicating a judgment thereon. The petition seeks a recovery of plaintiff’s share of profits at the date of dissolution. The question directed the jury’s attention to that time. Is the jury’s answer to the issue unsupported by evidence? For the answer to the question we look to plaintiff’s testimony. It may fairly be assumed that' the plaintiff’s suit is predicated upon certain information given the plaintiff by the defendant in a telephone conversation about [1032] Thanksgiving, 1923, together with the circum-' stance of the payment of $196.88 on alleged additional income. In the telephone conversation the plaintiff testifies: “He told me at that time that we had 43 bales of cotton in the Rising Star yard * * * and that we also had something better than $5,000.00 in money in the bank at Rising Star. * * * tt According to the plaintiff’s testimony, the dissolution of the partnership began the latter part of December, 1923, and wound up in the following January. It is thus seen that Dightfoot had the information given by the telephone conversation at least a month prior to the dissolution of the partnership. Erom the plaintiff’s pleadings and testimony, we must conclude that what he says relates to the same 43 bales of cotton frequently spoken of throughout the trial, and not more particularly designated. If there be any evidence that the defendant, Perkins, had in his possession said 43 bales of cotton at any time, it is the statement to that effect made by him in the Thanksgiving telephone conversation. Whatever may be said in appraising the value of this telephone conversation as testimony bearing upon anything therein stated, it would not establish that the cotton was in Perkins’ possession “at the close of the partnership” as called for in the issue, and which occurred about January 1, 1924, but a more material consideration is that the jury by its answer finds that said 43 bales were paid for with partnership funds, whereas in response to iss'ue No. 5 submitted tQ the jury it found that 25 bales thereof was the individual property of the defendant, Perkins, and therefore was “at the close of the partnership” neither in the possession of the defendant as partnership property nor paid for with partnership funds, the vital element in the issue. For these reasons we do not believe the answer of the jury is supported by the testimony. Further, it is fundamental error to submit an issue which has no basis in the pleadings and rest a judgment on the answer of the jury thereto. We fail to see why any issue should have been submitted relative to any 43 bales of cotton. By paragraph 5 of the plaintiff’s original petition, and as amplified in the supplemental petition, he evidently sought recovery on an item of 25 bales of cotton, which the jury in answer to issue No. 5 found to be the individual property of Perkins, Recovery in this suit to the amount of $1,875 was claimed by reason of the conversion of this particular 25 bales. There is no pleading in the case calling for an issue as to 43 bales of cotton, and it is fundamental error for the court to in any measure rest a judgment upon the jury’s answer thereto. Payne v. Godfrey, 61 Tex. Civ. App. 40, 129 S. W. 163; Cooperative Canal Co. v. Gray (Tex. Civ. App.) 184 S. W. 242; Evants v. Erdman (Tex. Civ. App.) 153 S. W. 929; San Antonio Traction Co. v. Yost, 39 Tex. Civ. App. 551, 88 S. W. 428; Homesteaders v. Stapp (Tex. Civ. App.) 205 S. W. 743; Sivalls Motor Co. v. Chastain (Tex. Civ. App.) 5 S.W.(2d) 185. It must further be remarked upon this phase of the case that the vice of the issue further appears, in that it authorized a jury to consider the value of the 43 bales of cotton and carry the same into the aggregate of their verdict. It would certainly tend to do so. This would be the logical consequence, notwithstanding the fact that the plaintiff admitted in his testimony that 18 of the 43 bales of cotton were placed by him upon a contract made by him in behalf of the partnership. To what extent the findings of the jury with reference to the 43 bales of cotton finally entered into the aggregate of the sum awarded-the plaintiff no one knows, nor can it be ascertained from the record. Its influence is uncertain, and the error cannot be cured by remittitur or otherwise. Dickey v. Phoebe Jackson (Tex. Com. App.) 1 S. W. (2d) 577. By the fourth proposition the defendant complains that the answer of the jury to issue No. 2 is not supported by testimony. The issue is: “At the close of the partnership between plaintiff and the defendant, did the defendant have in his possession belonging to the partnership a bank account or money in hand in the sum of $5,000.00?” The’jury answered “Yes.” To restate, the dissolqtion occurred about January 1, 1924. The issue is evidently suggested by the Thanksgiving conversation more than a month prior to the dissolution, in which plaintiff states that he was informed by the defendant that 43 bales of cotton and $5,000 were at Rising Star. According to the plaintiff, the partnership, during its existence, handled thousands of bales of cotton and did a business falling but slightly under a million dollars. Cotton was being purchased and sold daily throughout the season, and the bank account indisputably changed from day to day. Further, it is admitted by the plaintiff that on different occasions subsequent to the Thanksgiving conversation the defendant denied that he at any time had had that amount of money in the bank as profits of the partnership. Upon the occasion of their settlement and relative to the information obtained in the telephone conversation, the plaintiff testified: “When Mr. Perkins and I had an agreement and settlement of the $1,414.48 and I was settled with for my half of the profit, I knew then that we had forty-three bales of cotton and $5,000.00 in the bank there, and I already had some statements about that. * * * I asked him what had become of all the money and he said it had disappeared1, he had paid it out.” [1033] In this connection, and in another portion of his testimony, he states, in reference to the 43 bales of cotton and the $5,000: “As to whether I know anything about that except the conversation between me and Mr. Perkins, that is the only way I had of knowing and that is all I knew about it.” In connection with these circumstances is the payment by the defendant of the $196.88 taxes on an alleged unaccounted-for income evidence to sustain the particular issues under consideration? In his testimony the defendant denies that such funds were there and the testimony of the bankers with whom he did business, corroborated by their records, indicates that the defendant had no such fund in his possession. Under this record we do not believe that the circumstance standing alone of the defendant’s having paid the $196.88 taxes would constitute any evidence that said fund was in the bank “wt the close of the partnership," which occurred about January 1, 1924. Such statements as are attributed to the defendant and the fact that he paid said taxes are, we believe properly appraised as testimony by the opinion in each of the following cases: Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059; First State Bank of Amarillo v. Jones, 107 Tex. 623, 183 S. W. 874; Hall Music Co. v. Robinson (Tex. Civ. App.) 7 S. W. (2d) 625. We conclude that there is no testimony supporting the answer of the jury to said issue No. 2. Propositions 3 and 4 are sustained. By the jury’s verdict they found that there was on hand “at the close of the partnership” 43 bales of cotton and $5,000 partnership property; that said items were not taken into consideration at the first settlement when a division was made of the $1,414.48 (issue No. 3); that the partnership made profits other than those divided (issue No. 7); and that such undivided profits amounted to $5,524.36. There is no escaping the conclusion that the 43 bales of cotton and the $5,000 involved entered into the verdict of $5,524.36, representing in the jury’s mind undivided profits. This is evidently true, although the sale of the 18 bales by the plaintiff and the finding adverse to him on the 25 bales should have eliminated any consideration of the 43 bales in the making up of the verdict. Being of the opinion that the answers to issues 1 and 2, as submitted by the court, calling for a finding on the existence of said items “at the close of the partnership,” are not supported by the testimony, it becomes our duty to reverse the judgment of the trial court. The propositions sustained are controlling, and it is unnecessary to pass upon any other propositions urged by defendant or cross-assignments urged by plaintiff. The judgment of the trial court is reversed, and the cause remanded.