Hageman v. Vander Vorste

403 N.W.2d 420, 1987 S.D. LEXIS 251
South Dakota Supreme Court·Decided April 1, 1987·No. 15297, 15320·Published·Cited by 7 cases

Opinions

FOSHEIM, Retired Justice.

The trial court determined that plaintiff (appellant) was entitled to recover $9,333.03 from defendant, as a result of their purchase and sale of livestock as partners or joint venturers. The trial court also awarded costs but refused to award appellant prejudgment interest on his recovery and he appeals. We reverse.

From 1976 to 1978 the parties were involved in numerous “cattle deals” in which they bought and resold cattle together. Defendant’s wife did the bookkeeping for them. In 1979 the parties attempted to have an accountant audit their transactions. This audit ended with a transaction in March 1978. Both parties generally agreed at trial that this audit did not contain complete information about the transactions between them. One transaction that appellant failed to account for was the purchase of approximately $23,000 worth of cattle that resulted in a $1,041.12 loss to the partnership. Appellant produced the purchase records, the check used for this purchase of partnership cattle, and the deposit slip for the proceeds of their sale, which occurred a few days after their purchase. Defendant admitted he knew of this purchase. In another transaction appellant pocketed $108 he received from the resale of some partnership cattle to appellant’s brother-in-law. Appellant and defendant had traveled together to a livestock auction to purchase these cattle and after discussing their resale a day later defendant agreed the cattle could be resold to appellant’s brother-in-law. Both of these transactions occurred in April 1978, a month after the last dated entry in the 1979 audit.

There were also other partnership transactions that defendant failed to reveal for the 1979 audit. These transactions were not revealed until depositions were taken in May 1984.

The trial court found that the final amount due appellant was “not ascertainable at the time of the audit because both parties failed to supply the full amount of the figures involved in the transactions.”1 [422] Appellant contends that the trial court should have awarded him prejudgment interest because the amount he was entitled to recover was “certain or capable of being made certain by calculation.” SDCL 21-1-11.2

In an earlier decision on the issue of prejudgment interest we said:

The reason for denying interest on a claim is that where the person liable does not know what sum he owes, he cannot be in default for not paying. When the exact sum of the indebtedness is known or can be readily ascertained the reason for the denial of interest does not exist.

Beka v. Lithium Corp. of America, 77 S.D. 370, 375, 92 N.W.2d 156, 159-160 (1958). In applying a statute identical to SDCL 21-1-11, the California courts have recognized the Beka rationale for awarding prejudgment interest and have formulated a useful test to decide the question. “The test we glean from prior decisions is: did the defendant actually know the amount owed or from reasonably available information could the defendant have computed that amount. Only if one of those two conditions is met should the court award prejudgment interest.” Chesapeake Industries v. Togova Enterprises, 149 Cal.App.3d 901, 907, 197 Cal.Rptr. 348, 352 (1983); see also Amert v. Ziebarth Constr. Co., 400 N.W.2d 888 (S.D.1987).

In this case the parties obviously undertook the 1979 audit to accurately ascertain the financial status of their partnership and to determine whether either of them owed (or was owed) any amount. Although the parties clearly were careless in maintaining records of their “cattle deals” and did not supply the accountant with all necessary figures, the exact amount of the undisclosed transactions could have been ascertained to the penny. As far as the transactions that defendant failed to disclose, he had this information within his control and was capable of ascertaining the amounts. Furthermore, with the revelation that defendant himself overlooked some transactions that had occurred after the last dated entry on the audit, a reasonable inquiry by defendant would have also turned up the other figures appellant failed to provide. Defendant himself clearly recalled the April 1978 discussion with appellant concerning the sale of one bunch of livestock to appellant’s brother-in-law. And absolutely no dispute existed over the amount appellant pocketed on this sale— $108, which also could have easily been ascertained through the brother-in-law. Defendant also admitted that he was aware of appellant’s purchase of the other bunch of livestock, which resulted in a $1,041.12 loss from the sale of $23,153.34 worth of livestock. With this awareness of such a significant purchase of livestock, defendant could have easily ascertained the amount necessary to fully account for the transaction by making a reasonable inquiry about the result of the sale, which would have revealed the purchase record, the check, and the deposit slip. The parties did not dispute these amounts or the fact that they were partnership transactions. Although the parties may have made it difficult for an accountant to audit these transactions, defendant could have readily ascertained the amounts involved from reasonably available information. Hence, the trial court was clearly erroneous in finding that the amount was not ascertainable.

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Hageman v. Vander Vorste, 403 N.W.2d 420, 1987 S.D. LEXIS 251 (S.D. 1987).

403 N.W.2d 420 (Hageman v. Vander Vorste) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Hageman v. Vander Vorste
403 N.W.2d 420 (South Dakota Supreme Court, 1987)