Ove v. Hutcheson

85 N.W.2d 675 (1957)

Edward N. OVE, Plaintiff and Respondent, v. R. C. HUTCHESON, Defendant and Appellant.

No. 9606.

Supreme Court of South Dakota.

October 25, 1957.

Ramon A. Roubideaux, Ft. Pierre, for defendant and appellant.

Martens, Goldsmith & May, Pierre, for plaintiff and respondent.

PER CURIAM.

This is an action to recover on a contract to share profits. Defendant by the terms of a writing, dated June 15, 1953, agreed as the general contractor to furnish the "equipment, materials, and the money to carry on a construction business." Plaintiff as construction superintendent agreed to furnish the "skill, knowledge, and abilities to perform such construction work and carry out the terms of such existing contracts entered into by both parties." Defendant agreed to pay plaintiff $350 per month. The agreement further provided that the "general contractor shall receive sixty percent (60%) of the profits and the construction superintendent shall receive forty percent (40%) of the profits."

Plaintiff brought this action setting forth the written agreement and alleging that he had fulfilled his part of the agreement and that to the best of his information and belief his share of the profits computed pursuant to the terms of the contract was $2,500 and no part thereof had been paid, and prayed for an accounting and judgment for the amount found to be due.

The trial court found that the defendant received net profits in the amount of $2,949.62 arising from the performance of the contract and that plaintiff was entitled to $1,179.85 as his share thereof. Judgment was accordingly entered and defendant has appealed.

The errors assigned in effect challenge the sufficiency of the evidence to sustain the decision of the trial court. The sufficiency of the evidence was not questioned in the trial court by motion for new trial, request for findings or other appropriate procedure. The record does not, therefore, present for review the sufficiency of the evidence to sustain the findings of fact. SDC 33.0710; Chambers v. Wilson, 67 S.D. 495, 294 N.W. 180; Ehrke v. North American Life & Cas. Co., 71 S.D. 376, 24 N.W.2d 640. However, we have examined the record and conclude that the findings of fact are amply sustained by the evidence.

The judgment appealed from is affirmed.

All the Judges concur.