Tillotson v. Paquet

145 P. 268, 74 Or. 539, 1914 Ore. LEXIS 428

• Court: Oregon Supreme Court
• Decided: December 31, 1914
• Status: Published

Opinion

Mr. Justice Eakin

delivered the opinion of the court.

W. C. Walker testified that, Tillotson’s books of accounts being unintelligible and of no aid to him, he called for Paquet’s check and stub books, which Paquet turned over to him. It appears that all the expenditures were paid by Paquet by bank checks, and he received all the proceeds of the contracts, and plaintiff and defendant were both present with Walker when he made up his statements from the checks, which are in the record here as exhibits,. showing the expenditures as to each particular contract separately, with the receipts on that particular contract. The list of checks is in typewriting. This method of making up the accounts seems to have been carried out on the understanding that Paquet received all the money on the contracts and paid by check all the moneys paid out. The evidence does not show the items of the account nor the particulars upon which Walker accounted. The first statement relates to the St. Johns dock contract, giving the amount and the payee named in each check, and the sum of the checks is $37,032.66, and the total amount received from said contract, as shown by said statement, is $37,435.78, showing the profits to be $403.12. That is the only data we have before us in regard to the expenditures and receipts from that contract. The Bast Salmon and Third Street contract is stated in the same way, showing a profit of $1,099.54; the fish ladder contract, a profit of $289.78; the Portland Heights contract, a profit of $87.63; the Hawley Pulp & Paper Company contract, a profit of $107.27; the Vancouver bridge contract, a profit of $1,427.19; the Salem contract, a profit of $218.30; the Northwest bridge work, a profit of $394.80; the St. Johns Shipbuilding Company contract, a profit of $836.98; the Country Club work, a loss of $859.27; the Vancouver burnt bridge, a profit of $478.36; the Northern Pacific trestle, a profit of $3,086.09. The list of checks or receipts for the last two items does not appear among the typewritten exhibits, and checks and receipts for the Vancouver burnt bridge appear only in pencil. There is no datum here from which we can determine the accounts as to the contracts for the two last items, but at the time the list of checks found among the exhibits was made plaintiff and defendant were present, and Walker testified that they agreed to these results. There being no data from which we can review the figures, evidently it is intended that we shall determine the accounts from the statements of Walker as to the profits on each contract. Mr. Walker says that Paquet agreed to his statement not only as to profits on each contract as he states it, but that he agreed the balance found due from him to Tillotson was the correct balance. We do not so understand the result of the meeting, but only that at the time of the accounting upon the separate contracts he agreed to the amount of profits as there stated. The items of the Northern Pacific trestle and the Vancouver burnt bridge are included in nearly ail the statements, and neither of them is specifically controverted. We accept the statement marked “Plaintiff’s Exhibit B” as the correct statement of profits of each contract therein mentioned, the total of which is $7,569.79.

1, 2. There are some other items about which there is a controversy. Tillotson contends that the partnership should allow him for the use of his engines $1,267.50, being at the rate of $2.50 a day; for rent of office, the hire of stenographers, his traveling expenses, and phone hire, $930.38; also pay for piling which he furnished in the East Salmon and Third Street contract, $278.59. Paquet contends that a pile-driver, valued at about $300, was left in the possession of the plaintiff by the Seattle Company, which he says plaintiff kept, and still has it in his possession, one' half of the value of which he claims; but it is not shown that Tillotson got the title to it or what it is worth, nor that the partnership was entitled to it, and it cannot be considered here. Defendant also contends that a pile-driver hammer of his, worth $66, was lost in the work, for which he claims he is entitled to pay from the partnership. He claims that he is entitled to be remunerated by Tillotson for $40.20, costs advanced by him on a Seattle lawsuit, as the suit was Tillotson’s private affair. He contends that, when the Country Club paid him for their work, they paid him in Country Club bonds $2,000, and he should have $151.65 interest for delay in payment, or for some other reason not made plain. If he took the bonds in payment at par, and there was a loss, it might be a partnership loss, but the $151.65 is claimed as interest, as though he had advanced the money for the bonds, and not as a discount on the bonds, and is not a proper charge. He also claims credit for $166, which he alleges Walker, in making np the accounts, threw out, being money that he paid upon the Murphy bill; but it is not shown that he overpaid Murphy, and without such proof it was error for Walker to disallow such payment. If he made a mistake in the payment, the loss is the loss of the firm, and he is entitled to credit for the $166. The result of the statement as we have outlined above is as follows: J. B. Tillotson, in account with Joseph Paquet, profits on various jobs as follows: St. Johns dock, $403.12; East Salmon, $1,099.54; fish ladder, $289.78; Northern Pacific trestle, $3,086.09; Portland Heights, $87.63; Hawley Pulp & Paper Company, $107.27; Vancouver bridge, $1,427.19; Salem, $218.30; Northwest bridge work, $394.80; St. Johns Shipbuilding Company, $836.98; Vancouver burnt bridge, $478.36; total, $8,429.06. Deducting for the loss on Country Club of $859.27, there is left $7,-569.79. Paquet should be charged with one half the profits on the contracts, $3,784.90; one half the expense of Tillotson, $465.19, including office rent, stenographer fees, and phone bill; one half the amount of piling that Walker charged to Paquet, $139.29; one half of the hill for use of engine, $633.75; total, $5,023.12. Against which Paquet is entitled to credit for amount of advances made to Tillotson pending the contracts, $1,-972.55, as shown by the first page of typewritten statements ; notes and interest due from Tillotson, $1,787.50; cash paid on the Seattle suit for Tillotson, $40.20; charged as overpayment, Murphy’s hill, $166; one half the value of the pile-driver hammer, $33; one half of the amount of the Porter Bros.’ hill $92.70; one half’ of the miscellaneous account, $55.40; total, $4,147.35. Deducting this from the $5,023.13, leaves a balance of $875.78.

Tbe decree of the lower court will be modified to this extent. The partnership is hereby dissolved, and plaintiff is entitled to judgment and decree against the defendant, Joseph Paquet, for the sum of $875.78, being the balance due him on said accounting. Neither-party shall recover costs in this court.

Modified. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.