Patecell v. Cook

673 P.2d 33, 138 Ariz. 95, 1983 Ariz. App. LEXIS 605
CourtCourt of Appeals of Arizona
DecidedNovember 30, 1983
DocketNo. 2 CA-CIV 4752
StatusPublished
Cited by1 cases

This text of 673 P.2d 33 (Patecell v. Cook) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patecell v. Cook, 673 P.2d 33, 138 Ariz. 95, 1983 Ariz. App. LEXIS 605 (Ark. Ct. App. 1983).

Opinion

OPINION

HATHAWAY, Judge.

In May 1979, appellant offered appellee a position as a partner in his telephone equipment business. The agreement was written by appellant and signed by both parties on May 31, 1979. Appellee accepted the term of the agreement and made a capital contribution of $2,000 while appellant contributed $35,395.66.

Section 6 of the partnership agreement set forth certain conditions. It reads:

“Partners’ drawing accounts, and profit and loss sharing:
Rick Patecell will draw $2,000.00 per month, paid twice monthly, on the first and 15th of the month, at $1,000.00 each payday. From this draw Rick will reinvest $200.00 per month as stipulated under section four (4).
[96]*96Ron Cook will draw $4,000.00 each month, paid similarly, ...
******
Profits and losses from the partnership each year will be determined through regular accounting procedures. These profits (or losses) will be shared according to the percentage equity of each partner by each partner.”

On April 7,1980, appellant notified appellee by letter that his interest in the partnership had been purchased. Enclosed with the termination letter was a check for $2,000 representing appellee’s initial capital contribution which, on the reverse side, stated:

“When endorsed, this is payment in full for the initial investment into ABC partnership by Rick Patecell according to the agreement for same partnership dated May 31, 1979.”

Appellee acquiesced in the termination. On April 30, appellant tendered a check in the amount of $1,601.10, allegedly representing the additional $2,000 offered in his termination letter, less deductions for personal property taken by appellee and for miscellaneous charges and setoffs. The reverse side stated:

“This constitutes payment in full of the final 30-day draw for the 30-day notice of termination period, and no further money is due except that from equity in the valuation this month which is payable in 20 monthly pmts. hereafter.”

Appellant admits that, on May 8, 1980, he wrote appellee a letter which included a valuation of the partnership showing the business worth $100,515.16. Appellant calculated that appellee had made investments of $5,844.00 to the partnership and therefore owned 5.5% of the business and offered him the sum of $4,528.33. Included with this letter was a check for $276.41. The reverse of that May 8, 1980 check stated:

“This total payment for the first of 20 equal monthly payments for the entire equity in ABC of Rick Patecell.”

Appellee rejected the offer, rejected the valuation of the business and returned the check for $276.41.

On January 2, 1981, Cook was sent an accounting of the business assets of the partnership as of the termination date which showed for the first time partner draws reducing their equity in the partnership.

The court found that appellant was incorrect in maintaining that draws received by appellee were advances against his interest in the partnership and found that the draws were a salary. The court thereupon found that appellee was entitled to receive $10,461 for his equity in the business and the return of his initial investment and ordered appellee to receive an additional $2,000 as a final 30-day draw as provided in the buy-out provision in the agreement.

Appellant’s primary argument on appeal is that the trial court erred in finding that the twice-a-month draws constituted salary and not a portion of appellee’s equity in the partnership. The court found that the agreement, as drafted by appellant, contained no provision for offsetting the partner’s draw against the value of his ownership interest. The court also heard testimony that, before the filing of the instant case, neither party had interpreted the agreement as providing that a partner’s equity in the business would be offset by his draws and on two occasions before the filing of the action, appellant had determined the value of appellee’s partnership interest using the formula provided for in the partnership agreement and did not show the draws reducing appellee’s equity in either valuation. The court apparently concluded that the agreement was ambiguous on the point and that, if a contract is ambiguous, the court is able to consider evidence extrinsic to the document in construing it and adopting a meaning given to the agreement by ,the parties themselves. Associated Students v. Arizona Board of Regents, 120 Ariz. 100, 584 P.2d 564 (App.1978). The court also found that appellant, whose calculation of December 31, 1979, was used to induce appellee to invest addi[97]*97tional funds in the partnership, did not offset appellee’s “draws” in his calculation. The record before us supports the court’s conclusion that the parties intended the draws to have the effect of salary which would not be offset against appellee’s interest in the partnership. The reverse side of the check for repayment of appellee’s initial $2,000 investment and the check of May 8, 1980, show appellant believed the draws were separate from appellee’s equity interest in the business. Another check of May 8, 1980, was for “payment in full for the 7 days worked in April to April 7 dated of termination as a ptnr. No other draw except that for 30 days after AVfepril [sic] 7th under contention at this time re: deductions thereform [sic].’’

Appellant was clearly treating the draw as distinct from appellee’s equity interest and should be estopped from claiming otherwise.

In Boyer v. Bowles, 310 Mass. 134, 37 N.E.2d 489 (1941), the court was faced with a partnership agreement which did not specify whether draws were salary. The court there found that the draws must be treated as advances against profits. The court’s language, however, is helpful for our situation:

“The real question is to ascertain, in so far as possible, the intention and understanding of the parties. In the absence of an express agreement, the rule that no compensation is to be allowed precludes it, unless the other agreements as to the business to be done and the mode of conducting it show that compensation was intended. If this intention is doubtful, the subsequent course of dealing and conduct of the parties may be considered in determining whether there is such an implication in favor of the allowance of compensation as is tantamount to an express agreement.” 37 N.E.2d at 493.

The course of dealing shows salary was what was intended and the reformation of the agreement was proper. See Balon v. Hotel and Restaurant Supply, Inc., 6 Ariz. App. 481, 433 P.2d 661 (1967).

Appellant complains that the court should not have found there was a mutual mistake in the way they treated the agreement because the issue was not raised sufficiently in advance of trial.

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Cite This Page — Counsel Stack

Bluebook (online)
673 P.2d 33, 138 Ariz. 95, 1983 Ariz. App. LEXIS 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patecell-v-cook-arizctapp-1983.