Opinion
4-28-1955
Nick VANGEL and Ernest Vangel, Plaintiffs and Respondents, v. Charles VANGEL, Defendant and Appellant. Civ. 20534.
Pacht, Tannenbaum & Ross; Isaac Pacht, Rudolph Pacht, Jerry Pacht, Los Angeles, for appellant. J. Howard Sullivan and Joseph T. Enright, Los Angeles, for respondents.
Nick VANGEL and Ernest Vangel, Plaintiffs and Respondents,
v.
Charles VANGEL, Defendant and Appellant.
April 28, 1955.
Rehearing Denied May 17, 1955.
Hearing Granted June 23, 1955. *
Pacht, Tannenbaum & Ross; Isaac Pacht, Rudolph Pacht, Jerry Pacht, Los Angeles, for appellant.
J. Howard Sullivan and Joseph T. Enright, Los Angeles, for respondents.
McCOMB, Justice.
This is an appeal by defendant from a judgment following an accounting of partnership assets which was rendered pursuant to the decision on an appeal from a judgment decreeing a partnership dissolution involving the same parties. (See Vangel v. Vangel, 116 Cal.App.2d 615, 254 P.2d 919.) There is also consolidated with the foregoing appeal a separate appeal from a post-judgment order fixing a bond on appeal in the sum of $20,000.
For a detailed statement of the facts involving the present litigation, see Vangel v. Vangel, supra, 116 Cal.App.2d 618, et seq., 254 P.2d 919.
So far as the present appeal is concerned these are the only questions involved:
First: Did the trial court in taking the accounting err in (a) awarding defendant as his share of the profits of the partnership earned since the dissolution date any sum other than a sum equal to 33 1/3% of the total; and (b) denying defendant compensation for his services rendered to the partnership from June 15, 1950 (the date of the dissolution of the partnership) until the date of the present judgment from which an appeal is taken?
This question must be answered in the negative. In an opinion of this court prepared by Mr. Justice Fox (Vangel v. Vangel, supra, 116 Cal.App.2d 633, 254 P.2d 930) it was said: 'A retrial of the issues is unnecessary, but an accounting must be had and a new judgment entered. The first phase of the accounting is for the purpose of determining the value of the respective interests of the partners as of the date of dissolution, viz., June 15, 1950. In arriving at that figure the valuation of $235,000 placed on the property by the trial court is definitive of that question. However, in determining the respective financial interests in the partnership business as of that date consideration must be given to the $25,000 which plaintiffs advanced for defendant, and to the $42,000 which plaintiffs improperly withheld and distributed, together with interest on said sums to the date of dissolution. All other assets and liabilities of the partnership, together with any claims of the parties inter se, must be included in the ascertainment of the respective interests of the plaintiffs and the defendant. 'The second phase of the accounting covers the period from June 15, 1950, to the filing of the remittitur herein. This should establish the net profits of the partnership for that period and defendant's share therein should be allocated to him in proportion to his interest in the business on June 15, 1950. The judgment should contain an appropriate provision permitting plaintiffs the privilege of purchasing defendant's interest in the partnership enterprise pursuant to the provisions of section 15038(2)(b) Corporations Code, and providing that in the event plaintiffs elect to make such purchase they shall pay defendant interest at the rate of 7 per cent per annum on the amount found to be due him as of the date of the remittitur until paid. The judgment should also contain an appropriate provision for the indemnification of defendant in the event plaintiffs purchase his interest. Section 15038(2)(b). The judgment should further provide for defendant's participation, on a pro rata basis, in the proceeds of the sale after deducting picking and other marketing expense of such, if any, of the citrus crop as may be substantially matured upon the filing of the remittitur. This provision should require plaintiffs to assign to defendant his share of the proceeds from such maturing crop so that they may be paid directly to defendant by the marketing organization, and thus not delay the accounting or rendition of a final judgment * * *.' 'The judgment is reversed with directions to take the accounting and enter a judgment in accordance with the views herein.'
When the case was retried by the superior court before Judge Vickers, two contentions were made by defendant's attorney: (1) that defendant was entitled to 33 1/3% of the profits of the partnership earned after its dissolution, regardless of the facts; and (2) that he was entitled to compensation for services rendered to the partnership after its dissolution to the date of the accounting.
In construing the language used by this court in Vangel v. Vangel, supra, the learned trial judge said: 'The cases from which you have read, Judge Pacht, commencing with the Griggs case and ending with the Kirkpatrick case, are not cases which apply to a dissolution by order of court because of the fault of one of the parties. Your attempt to apply the rules laid down by reason of the interpretation of a contract by reason of the acts of the parties cannot apply to this case. 'Such rules generally apply to two situations: (1) Where the parties have made a contract which is uncertain by its terms, and for the purpose of analyzation and determination of what the parties intended to do at the time they executed the contract, we look into their subsequent conduct. That is not our case, because the actions upon which you rely, except for the deed back in 1948, were acts subsequent to the judgment, one or more of the judgments in this case. You cannot enter into their acts or conduct and determine what was in their minds at the time the contract was made for them by the court. We have to look to what was in the court's mind, and that you can determine only from what the court says. 'Now the second application of conduct of the parties is sometimes looked to for the making of a new contract; that is, such conduct on their part which might create respective obligations, and from which it can be said that they implied a promise to the certain things in return for certain other things to be done by the opposite parties. We don't have such facts here. 'It is quite apparent that these parties have been unable to make a new contract for themselves for the time, or almost from the time, that they entered into the original partnership agreement. A very important element of that was that the one who managed the place was to be paid a certain sum of money for his services, determined by the mutual agreement of the parties. And yet, as the lower court and as the District Court found, they were never able to agree to that. On a factual basis, there is nothing before me which would justify me in finding the parties had made a new contract for themselves at any time, either before or after the Superior Court judge provided a change in their agreement from that which was created by the original partnership agreement. 'Now, we are not here concerned with a matter of equity. As far as the action of this Court is concerned, its function is to apply the law of the case as laid down by Mr. Justice Fox. * * * 'The only interpretation that is possible, in my mind, to be placed upon the opinion of Justice Fox in relation to this matter, is, as he clearly has stated: 116 Cal.App.2d 615 that 'We shall first determine the pro rata share of the defendant as of June 15, 1950,' [sic] and since it was apparent to the District Court that the defendant did not wish to accomplish that which he could have accomplished, to wit, that pro rata share expressed in dollars with interest thereon from June 15, 1950, but to apply that pro rata share to the profits of the business from June 15, 1950, to the date of the coming down of the remittitur. 'Now, the only possible way to do it is as has been already done by the only possible method of doing that, and that is as has already been done by the accountant, and that is to reflect the value of the business as determined by the trial court, and then to apply to it the $25,000 debt of the defendant, the $14,000 debt of the plaintiffs, one to the other, respectively, and such other claims inter alia that there may have been--and we have none produced here--and then having determined that pro rata interest, which in this case appears to be approximately 24 per cent, we then apply that percentage to the profits during the period in question. 'Justice Fox did not make merely a passing reference to Sections 15038(2b), 15041 and 15041 of the Corporations Code. He referred to them for a specific purpose in applying them to the issues that were before him in that case and that are before us in this case. It is inconceivable to me that Justice Fox would have written the opinion as he did write it if he had any though in mind that the profits were to be divided one-third to each of the parties. Much of what he has said in regard to the distribution of profits would have no application. We would have to write an entirely different opinion for him in order to arrive at that conclusion. * * * * * * 'After thoroughly weighing the matter, as he did this, he arrives at definite conclusions, and . . . there can be little, if any, doubt in the mind of the reader as to just what conclusions he did arrive at.'
We are in accord with the views expressed by the trial judge; the language in the opinion is clear, unambiguous and can only be construed as was done by the trial judge in denying defendant's contentions.
Second: Does the evidence support the findings?
Yes. Defendant several times in his brief contended that the evidence does not support the findings. However, there is an absence of reference to the transcript, and defendant had failed to comply with the rule that one who contends that a finding is not supported by the evidence must set forth in his brief a summary of the evidence on the questioned issue. Unless this is done the error assigned is deemed to be waived. (McCosker v. McCosker, 122 Cal.App.2d 498, 500, 265 P.2d 21.)
The appealing party has the burden of showing error and where, as in the instant case, this burden is not met it will be presumed that there was substantial evidence to support each and every questioned finding. (Richard v. Richard, 123 Cal.App.2d 900, 902, 267 P.2d 867.)
Applying the foregoing rules to the facts in the present case it is apparent that since defendant has failed to comply with them, this court will presume that there was sufficient evidence to sustain each and every questioned finding of the trial court.
Third: Did the trial court err in requiring defendant to pay his proportion of the cost of the audit and accounting?
No. The new accounting to which defendant is objecting was ordered as a result of the appeal prosecuted by defendant in the case of Vangel v. Vangel, supra, which resulted in the order directing the taking of the present accounting. Clearly he is not in a position to complain because he has obtained that which he sought by his previous action, to wit, a new and different accounting.
Fourth: Did the trial court err in fixing the bond on appeal in the sum of $20,000?
This question is moot in view of the fact that the bond was never posted and the appeal has been prosecuted without it. We therefore do not consider such question. The rule is accurately stated by Mr. Justice Griffin in Keefer v. Keefer, 31 Cal.App.2d 335, 337, 87 P.2d 856, 857, thus:
'An appellate court will not review questions which are moot and which are only of academic importance. It will not undertake to determine abstract questions of law at the request of a party who shows that no substantial rights can be affected by the decision either way.'
The judgment and order are, and each is affirmed.
MOORE, P. J., and FOX, J., concur. --------------- * Opinion vacated 291 P.2d 25.