Opinion
No. 70-64 Reversed and remanded.
November 12, 1971. Rehearing denied December 8, 1971.
APPEAL from the Circuit Court of Shelby County; the Hon. ROBERT J. SANDERS, Judge, presiding.
Ryan and Heller, of Mattoon, (Harlan Heller and Dale A. Cini, of counsel,) for appellants.
William L. Turner and Baker Baker, both of Shelbyville, for appellees.
On November 6, 1965, Jean Wood, plaintiff-appellant, and Everette Davis, defendant-appellee, entered into a verbal agreement to operate a farm of 2640 acres in Mississippi on a fifty-fifty basis, each party to furnish half of the work and receive half of the profits. As a result of disagreements, the parties entered into a written agreement to terminate the partnership as of January 1, 1967.
On September 3, 1966, both parties signed a comprehensive written statement of account purporting to show the contributions of each to the partnership from its inception until September 3, 1966. This statement disclosed that Davis owed Wood the sum of $16,597.64 up to that date. At that time Davis executed a promissory note payable to the order of Jean and Kathleen Wood in the amount of $16,000, with interest at the rate of 8% and wrote "not for resale" on it. Wood later brought the note back to Davis because he objected to the additional language on the note by Davis. Davis then executed a new note dated September 3, 1966, in favor of Jean Wood and his wife in the amount of $16,000 with interest at 8%. On September 10, 1966, Davis gave Wood a check in the amount of $400 to be applied on the balance. There were numerous other transactions by the parties subsequent to this date which are too numerous to mention but which are sufficient to show that the plaintiff has expended a substantial amount more than the defendant.
The plaintiff initially brought suit on two negotiable notes upon which judgments were entered by the court. One of the notes was the one mentioned for $16,000 which was to include all transactions in the partnership up to that date. The other note was for $7250 and was dated January 6, 1967, and resulted from a mortgage payment made by the plaintiff on behalf of the defendant. After judgments by confession were entered, they were opened on motion of the defendants and the plaintiffs then filed their first amended complaint for an accounting between the parties. The trial court found for the plaintiffs and against the defendants in the amount of $10,234. Plaintiffs filed a post trial motion for specific findings of fact and conclusions of law in arriving at its judgment, and further asked for judgment in the amount of $29,185.48. Both motions were denied and the plaintiffs have appealed.
Included in the September 3, 1966 accounting was a certain amount for bulldozing of the farm done by the plaintiff. The plaintiff claims that this work was worth $31,000 and is reflected in the 1966 accounting. The appellee contends the work was worth only $16,000 and, over the appellant's objection, was allowed to introduce evidence of transactions prior to the September 3, 1966, accounting. The appellant claims that it was error to inquire into transactions prior to the accounting, and that as a result, the trial court did not give effect to the accounting. If the accounting was considered by the court, and the note for $7250 was also considered, the total would be in excess of $23,000 and hence totally irreconcilable with the court's judgment of $10,324. This is necessarily so because subsequent transactions would be unable to make up the $13,000 difference. Because the trial court failed to set forth its findings of fact, it is impossible to determine what the trial court did or did not include in this judgment.
• 1 The appellants first argue that the trial court should set forth its findings of fact and conclusions of law in arriving at its judgment. While this is no longer required, see Ill. Rev. Stat., ch. 110 par. 64(3), it has been urged upon the trial courts, especially in complicated accounting suits. ( Robinhorne Const. Corp. v. Snyder, 113 Ill. App.2d 288, 294-95.) In Robinhorne the court stated that it must conjecture as to the basis of the judgment below. It is impossible to determine the basis of the trial court's judgment in the instant case, but it is clear that the trial court's judgment is, as the appellant states, irreconcilable with the last account stated.
• 2 The key issue is whether in an accounting suit between partners, the court must begin with the last account stated. Here, the defendant testified that he received and executed the copy of the September 3, 1966, accounting. He further testified he gave a $16,000 note to Mr. Wood on that date based on the accounting. An account stated between partners is binding upon them as to prior transactions in the absence of fraud or mistake, neither of which is shown here. Korziuk v. Korziuk, 13 Ill.2d 238, 243, 40 Am.Jur., Partnership. Sec. 352.
• 3 Defendant contends that the plaintiff did not raise the issue of last account stated in the trial court and is therefore precluded from raising it on appeal. This contention is without merit because the pleadings and the evidence disclose that plaintiff did raise this issue.
• 4 This court is unable to determine what the proper amount of the judgment should be in that the trial court has not set forth its findings of fact and conclusions of law. However, it is clear that the last account stated between the parties was not used as a starting point, for that amount, combined with the subsequent note of $7,250 would clearly result in a higher judgment for the plaintiffs. The amount reached by the trial court could only have been arrived at by allowing the claim of the defendants prior to the September 3, 1966, accounting. In so doing the trial court erred.
• 5 This case is reversed and remanded to the trial court of Shelby County with directions to vacate its order of March 3, 1967, opening up the judgment by confession on the note of September 3, 1966, in the sum of $16,000 executed by the defendant Everette L. Davis and payable to the plaintiffs Jean and Kathleen Wood and to reinstate the judgment against him thereon with interest on the note to date. The trial court is further ordered to vacate its order of March 3, 1967 opening up the judgment by confession on the note of January 6, 1967 executed by Everette L. Davis and Ruth Davis, defendants, in favor of Jean Wood in the principal sum of $7250, and reinstate judgment thereon with interest to date, except that the trial court is directed to hold a hearing on the reasonableness of the attorney's fees allowed on this note. This court is unable to determine the exact amount of money expended by the parties by reason of transactions occurring after September 3, 1966, because some of the items expended by each of the parties are in dispute. The trial court is therefore further directed to determine the amount expended by each of the parties to this case by reason of the transactions between the parties since September 3, 1966, hearing further evidence, if necessary, and enter judgment accordingly.
Reversed and remanded with directions.
CREBS and JONES, JJ., concur.