Forbes v. Butler , 73 Utah 522 ( 1928 )

On Petition for Rehearing. A petition for rehearing, or, if rehearing be not granted, then for a modification of the court's judgment on this appeal has been filed by appellant Forbes.

This is the second appeal in this case. The opinion on the first appeal is reported in 66 Utah 373, 242 P. 950. The finding of the court on the first appeal was that a joint venture between Forbes and Butler was established, and the cause was remanded for an accounting. In the petition for rehearing or modification it is insisted that an error was made in computation in fixing the amount of the judgment to which Forbes is entitled; also that Butler should have been charged with interest; and that there was an error in affirming the judgment of the district court and approving that court's judgment dismissing the action against the Iron Springs Sheep Company.

It is apparent from an examination of the opinion of the court that an error was made in not including in the total amount of the judgment one-half of the item $311.89. That amount, to wit, $155.94, should be added to plaintiff's judgment.

It appears that the sale of the property upon which Butler had an option was consummated on or about June 5, 1923. A payment on the purchase price of the property was made on that date, and the pro rata amount of the commission to which plaintiff and defendant were entitled was received by Butler at that time. Other payments were made at later dates. This suit was instituted July 18, 1923. Subsequent to the institution of the action other payments were made by the purchaser of the property to the sheep company, and from the amounts so paid the commissions were paid to Butler out of each payment.

As is stated in the opinion in this case, a finding on the former appeal, that a joint venture existed between Butler and Forbes, is conclusive and binding on the parties to this action, and likewise upon the trial court, and this court in the further determination of the rights of the parties. Testimony was adduced at the trial on the accounting that quite conclusively established that the appellant Forbes did nothing to carry to a successful consummation the purpose of the joint venture, namely, the sale of the property held under option. The limited time that can be given to a further consideration of this case precludes a discussion here of the authorities or of the facts involved. We shall therefore content ourselves by merely stating what we conceive to be our duty in the premises.

The Iron Springs Sheep Company was made a party to the original action, and thus had notice of the claim of plaintiff of his interest in the commissions to be paid 8 by that company for the consummation of the sale. By reason of such fact it also had notice when it subsequently made payments to Butler that Forbes claimed an interest in the commissions so paid. As a result of the litigation Forbes established his right to an interest in the commissions thereafter paid by it.

Our former judgment will be modified as follows: The amount which plaintiff is entitled to recover will be increased in the sum of $155.94. Interest will be allowed on the total amount to which plaintiff is entitled from the date of the judgment on accounting, that is, the date of the judgment from which this second appeal is taken. The order affirming the trial court's judgment dismissing the complaint against the Iron Springs Sheep Company is reversed, and the trial court is directed to enter a joint judgment for the amounts indicated above against Butler and the Iron Springs Sheep Company. In all other respects the opinion as written is reaffirmed.

Petition for rehearing denied.