
    COLCLAZIER v. MOORE.
    (No. 2956.)
    Court of Civil Appeals of Texas. Amarillo.
    April 18, 1928.
    Rehearing Denied May 23, 1928.
    1. Appeal and error <s&wkey;l93(9) — Judgment on petition which fails to state cause of action is fundamental error.
    Judgment rendered upon petition not setting out a cause of action is fundamental error.
    2. Pleading <&wkey;34(6) — Every reasonable in-tendment is indulged in favor of sufficiency of pleading to support judgment.
    In passing upon the sufficiency of a pleading to support a judgment, every reasonable intendment must be indulged in favor of the pleading as to its sufficiency.
    3. Joint adventures <&wkey;>5(2) — Petition alleging defendant’s contract to pay plaintiff 25 per cent, of profits of store for plaintiff’s services, and alleging date of contract and termination and amount of profits, held sufficient.
    Complaint alleging that plaintiff entered into employment of defendant in capacity of meat cutter in store in consideration for receipt of 25 per cent, of net profits of store and market, and that from the date of the contract to its termination store realized profit of $31,250, to one-fourth of which plaintiff was entitled under his contract, held sufficient as against general demurrer, after entry of'judgment in plaintiff’s favor, where it was alleged that the books of the store were in the hands of defendant and concealed and withheld from plaintiff.
    4. Appeal and error i&wkey;740 (I) — Assignment on ground jury arrived at verdict by calculating average and that some of jurors expected deduction held multifarious.
    Assignment of error on ground that verdict was arrived at by jury by calculating an average, and that when the amount was reached it was understood by some of the jurors that certain sum was to be deducted, held to.violate court rules as multifarious.
    5. New trial <S=ol24(l) — Denial of new trial for misconduct of jury held not error, where motion was not sworn to.
    Denial of motion for new trial on ground that jury was guilty of misconduct in arriving at average verdict and that some of jurors understood certain amount was to be deducted held not error, where objection was presented in an unsworn motion for new trial and jurors’ testimony was offered to impeach their verdict.
    6. Joint adventures <&wkey;5(l) — In suit by one running market department to recover share of- store’s profits under contract, third person' sharing profits under independent contract with defendant was not necessary party.
    In suit to recover 25 per cent, of net profits of market and store on ground of contract constituting joint adventure between plaintiff and defendant, whereby plaintiff was to receive share of net profits for running the market, another person employed by defendant who was to receive one-fourth of net profits of business for his services was not a necessary party, since partnership relation was- not involved and contracts were independent.
    Appeal from District Court, Hutchinson County; Newton P. Willis, Judge.
    Suit by J. H.1 Moore against M. E. Colcla-zier. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wyley E. Crabtree and Ove E. Overson, both of Borger, and Cooper & Lumpkin, of Amarillo, for appellant.
    Coffee & Coffee and Holmes & Buckley, all of Borger, for appellee.
   RANDOLPH, J.

This suit was filed by ap-pellee, as plaintiff, against appellant, as defendant. From a judgment for plaintiff, the defendant appeals.

Plaintiff alleges in bis petition substantially as follows: That the defendant was the owner and operator of the Oklahoma-Grocery and Market, doing business in Borger, Hutchinson county, Tex, and has been operating said store since the 27th of June, 1926; that the plaintiff was an employee in the market department of said store; that on or about the 27th of June, 1927, plaintiff entered into a contract with the defendant whereby he (plaintiff) was to enter into the employment of the defendant, in the capacity of meat cutter in the sale of market products in said store and market; that as a consideration for his services, the plaintiff was to receive from defendant the sum of 25 per cent, of the net profits realized from the sale of market products and groceries, whether the sáme be sold in the market or grocery department business. Plaintiff further represents that as a result' of the contract entered into and in consideration of 25 per cent, of the net profits agreed upon, the plaintiff entered into the employment of the defendant and operated the market department of s,aid business from t-he 27th of June, 1926, until on or about the 15th of May, 1927; that during such time, plaintiff and defendant sold approximately $125,009 in merchandise, at a profit of 25 per cent, or $31,250, of which said amount the plaintiff is entitled to one-fourth; that at the time of the termination of the contract, or about the 15th day of May, 1927, the stock of merchandise in the grocery store and market inventoried $4,146.37; that there was on hand cash, belonging to said parties, in the bank the sum of $1,399.86; cash taken in and in the safe, $1,371.53; accounts receivable from solvent customers, $2,200; $500 on deposit with Doyle Packing Company of Wichita, Kan.; light deposit, $16; deposit with the Bondhurst Salt Company, $7 — making a total of deposits and inventory of $6,956.76 belonging to the plaintiff and defendant; that there is property situated in said store building, in which the business is operated, fixtures and tools, which are not shown in the inventory belonging to the plaintiff and defendant to the value of $475.50 ; that the plaintiff and defendant owned a pair of scales) which defendant sold to J. A. Morgan, of the value of $90, and which defendant has failed and refused to account to plaintiff for his pro rata part of the profits of said sale. Plaintiff further represents that all of the values heretofore referred to as merchandise, cash on hand,' etc., represent profits and investment of profits from the said business, and of which said total amount, to wit, $7,520.36, plaintiff is entitled to 25 per cent, thereof; that said business has realized a net profit of 25 per cent, on all merchandise sold in the operation of said grocery and market, in the sum of $31,250; and that the defendant has accounted to the plaintiff for the sum of $7,520.36, leaving a balance to be accounted for of $23,729.64; that under the contract with plaintiff, as heretofore set forth and stipulated, the defendant is indebted to the plaintiff in the sum of $7,802.25, which represents one-fourth of the net profits from said business. Further, it is alleged that the plaintiff has drawn from the said business the sum of $1,700, representing a part of the profits, and leaving a balance' due bim by tbe defendant of $6,102.25.

Plaintiff also alleges that during tbe course of tbe operation of said business by plaintiff and defendant, said defendant bas bad tbe books belonging to said store and market in bis possession and wbicb said books showed tbe profits of said concern; that tbe defendant bas at all times and at tbis time is keeping said books concealed from tbe plaintiff and will not permit bim to audit or bave them audited so that tbe true profits of said business may be ascertained. Plaintiff prays for an accounting, and that the court require defendant to bring tbe said books into court, etc., and that he recover judgment against tbe defendant for tbe sum of $6,102.25.

Tbe pleadings of tbe defendant will not be stated, as they are not necessary to a discussion of tbe questions to be determined on this appeal.

Tbe case was submitted to a jury upon special issues, and in answer to such issues, they found, in effect: That tbe net profits of tbe grocery store and the meat market combined, at tbe time tbe plaintiff and defendant terminated tbe contract, was $14,775.00; that tbe plaintiff and defendant bad agreed that tbe business should be charged with $200 per month rent; that tbe plaintiff and defendant agreed that tbe plaintiff should bave tbe room that be moved into in tbe warehouse for sleeping purposes, rent free, if be would pay bis part of tbe improvements that were placed therein, and that tbe plaintiff bad paid his part for same.

Tbe trial court, after deducting tbe sum of $1,727.82 received by plaintiff, rendered judgment for bim in tbe sum of $1,965.93, balance coming to bim.

In a supplemental brief, tbe appellant (defendant) presents alleged fundamental error in that tbe trial court erred in rendering judgment in favor of tbe plaintiff, for tbe reason that the pleading of tbe plaintiff is wholly insufficient upon which to predicate any judgment and was subject to a general demurrer.

Tbe specific objection to tbe petition under tbis assignment is that it does not allege the time of ascertaining such net profits, nor bow they were to be paid, and no basis is contained in said petition anywhere for ascertaining tbe amount of said net profits, tbe time of payment, or tbe method of ascertaining same.

In passing upon tbis question, we find no order or judgment of the trial court overruling tbe general demurrer; hence we will pass upon tbe sufficiency of tbe petition, under tbe proposition that a judgment rendered upon pleadings not setting out a cause of action is fundamental error..

In passing upon tbe sufficiency of a pleading to support a judgment, every reasonable intendment must be indulged in favor of tbe instrument attacked as to its sufficiency. Whaley v. Thomason, 41 Tex. Civ. App. 405, 93 S. W. 212; Patton-Worsham Drug Co. v. Drennon (Tex. Civ. App.) 123 S. W. 706.

Tbe plaintiff’s petition, as disclosed by .the foregoing statement of its contents, alleg- ' es a contract between tbe parties, the consideration for same, tbe date of tbe contract, and its termination. This is a sufficient allegation, by intendment, of tbe time for tbe ascertaining of tbe net profits, bow they were to be paid and when to be paid, and is a sufficient basis for tbe judgment in tbe absence of a special demurrer. Tbe allegation that tbe books are in tbe bands of tbe defendant and concealed and withheld by him from tbe plaintiff is a sufficient excuse for not pleading more in detail the transactions of tbe business, and, we think, tbe petition is not subject to general demurrer. Even though no such excuse for not pleading in detail was given, tbe petition presents a cause of action when considered as a whole. Altgelt v. Elmendorf (Tex. Civ. App.) 86 S. W. 41.

Error is assigned on tbe refusal of tbe trial court in not setting aside tbe verdict of tbe jury, for the reason that their verdict was arrived at by calculating an average, and was not based on their individual judgment, and, further, that when said amount was reached, it was tbe understanding of some of tbe jurors that there was to be deducted therefrom the amount of tbe rent due defendant, the amount already paid to the plaintiff, etc. Tbis proposition is in violation of tbe rules for tbe presentation of errors in tbis court, for it is clearly multifarious. It cannot be considered for another reason. Tbe objection is presented in an unsworn motion for a new trial, while it is reserved by bill of exception, as follows:

“The defendant, M. E. Colelazier, through his attorney of record, duly presented his motion to set aside the verdict of the jury rendered herein, which said motion had been previously filed in this cause on1 the 16th day of July, A. D. 1927, and in paragraph 12 thereof, is as follows, to wit (transcript, page —): ‘Because the jury was guilty of misconduct in arriving at the amount of profit under the court’s first interrogatory, in this: They differed widely as to the amount of such damages and profit, and finally determined as to the amount, not from the individual judgment of each juror, but from calculating an average between the highest and lowest amount thought proper by the individual juror. The matters of fact stated under this and eleventh ground for new trial will be proved upon the hearing of this motion.’
“(The defendant offered' his testimony at this time of some of the jurors to show that after they had arrived at the amount of their verdict, as shown by transcript, page-, it was the understanding of these jurors" that there was to be deducted therefrom the amount of rent due M. E. Colelazier, the amount already paid to J. H. Moore, the amount paid to L. M. Colelazier, and the expenses, which would greatly reduce the amount of the judgment awarded the plaintiff; but the court refused to hear the said testimony stating that the bill of exceptions maj be prepared covering this point and it be admitted that the above statement would be corroborated by the testimony of some of the jurors.)”

There having been no proper predicate laid. for the consideration of the matters set out in this proposition, the trial court did not err In refusing to consider same. Gaertner v. Stolle (Tex. Civ. App.) 238 S. W. 252-257 (writ denied); Stubblefield v. Stubblefield (Tex. Civ. App.) 45 S. W. 965, 967.

Error is assigned upon the failure of the plaintiff to make L. M. Colelazier a party defendant, on the ground that he was a necessary party to the action.

We overrule this assignment. Plaintiff, in his petition, alleges a joint adventure between himself and the defendant, in that he was to get 25 per cent, of the net profits for running the market business. While the evidence discloses that L. M. Colelazier, the son of the plaintiff, was also employed in said grocery and meat market, and was to get the sum of 25 per cent, of the net profits of said business, his participation in the net profits in ño wise affects plaintiff’s recovery and in no wise enters into or controls the contract as alleged and proved between the plaintiff and defendant. The evidence does not show a partnership relation between the two Colelazier s and the plaintiff, but shows a joint adventure. Champion v. D’Yarmett (Tex. Civ. App.) 293 S. W. 587, and authorities therein cited (writ denied). This being true, L. M. Colelazier was not a necessary party to the action.

We have carefully considered all propositions and assignments, and, finding no reversible error, affirm the judgment of the trial court. 
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