Henker v. Lindsay

97 P. 329, 34 Utah 298, 1908 Utah LEXIS 61

• Court: Utah Supreme Court
• Decided: July 29, 1908
• Docket: No. 1924
• Status: Published

Opinion

STRAUP, J.

This action was brought by plaintiff, alleging that a partnership relation existed between himself and the defendant in the conduct of a business described in the findings, and that the defendant was indebted to him in the sum of $449 as plaintiff’s unpaid share of the profits. Upon issues joined the cause was tried to the court, who found the following facts: (1) That in February, 1902, in the State of Washington, the plaintiff and the defendant entered into an equal partnership, and as such partnership engaged for the period of four months in the business of fitting and furnishing spectacles and glasses, and soliciting contracts for tbe treatment of diseases by the Oregon Medical & Surgical Dispensary of Portland, Ore. (2) That said defendant agreed with plaintiff that the expenses and the profits, of said enterprise should be divided equally between them. (3) That said business was conducted, and said partnership continued, for the period of four months, and the expenses have been paid, and the net proceeds of said business amounted and amounts to $1,550. That plaintiff has received $400 of the same, and no more, and the defendant has received $1,150. (4) That the defendant has had and retained $750 more than the plaintiff received, of which amount the plaintiff is entitled to one-half. (5) That demand has been made upon the defendant, which he has refused, for an accounting and payment. (6) That there is now due from the defendant to the plaintiff the sum of $375. Upon these facts judgment was rendered in favor of plaintiff and against the defendant in the sum of $375 and costs.

On appeal the defendant urges that findings 1, 2, and 3 are not supported by the evidence. The only evidence in the case is the testimony of the plaintiff and the defendant. The plaintiff gave testimony which tends to support the findings. His testimony, if believed by the court, was sufficient to support them. The defendant gave testimony tending to show that no partnership relation existed between himself and the plaintiff, and that the plaintiff was only his employee and assistant in the conduct of the business. We see no good purpose in setting forth the substance of the conflicting testimony of the witnesses. Upon an examination of the record we are satisfied that there is sufficient evidence to support the findings.

The judgment is therefore affirmed, with costs.

McOAKTY, C. L, and FRICK, J., concur.