Swiatkowski v. Kroll

331 Mich. 179 (1951)

49 N.W.2d 128

SWIATKOWSKI v. KROLL.

Docket No. 54, Calendar No. 45,118.

Supreme Court of Michigan.

Decided September 5, 1951.

Bruno L. Blinstrub and Charles A. Retzlaff, for plaintiff.

Goldsmith & Shapiro, for defendants.

BUTZEL, J.

Leon Swiatkowski, plaintiff, brought suit against Stanley Kroll, also known as Stanley King, defendant herein, for dissolution of an alleged partnership, an accounting and other relief. Victoria Kroll, wife of the defendant, was joined as a codefendant to reach her interest in real estate and other partnership assets. Plaintiff is the stepfather of the defendant. The parties are of foreign extraction and seem not too well educated. The record indicates that some of the testimony may be the result of forgetfulness or outright perjury. The testimony was conflicting, but after seeing and hearing the parties and examining the exhibits, the court found that there was a partnership, to which real estate and other assets belonged, and granted plaintiff the relief prayed for.

Plaintiff for 31 years was steadily employed at the Ford Motor Company and in later years the defendant worked at Chrysler's. Their hours of employment were staggered, plaintiff completing his day's work at 2 p.m., and defendant beginning his at 3 p.m. During their time off, they opened and operated a gas station at the northwest corner of Van Dyke and the Eight Mile Road, Baseline, *181 Michigan, the real estate herein involved and hereinafter referred to. The business evidently was profitable for a time. Codefendant also assisted. In January, 1943, the business closed and the assets were sold for $200. In September, 1943, the business was reopened on a profitable basis. Plaintiff claims that the business was reopened by himself and defendant as equal copartners, while defendants assert that this is untrue, and that the defendants were the sole owners of the business, and plaintiff worked for them, his compensation being 50% of the profits. No written agreements were entered into, no partnership certificate filed, no books kept, no commercial bank account opened, and with the exception of a few memoranda made on a calendar at times and then destroyed, no account was kept by them or any of them. The only written evidence before the court consisted of the sales tax records filed with the Michigan department of revenue and some income tax returns of not too explanatory a nature. There are records of purchases from the suppliers of gasoline, et cetera, and the markup on sales to retail customers at the station may be ascertainable.

When the station reopened in 1943, it was the plaintiff who negotiated for the purchase of the real estate and who paid as a deposit on the purchase price the sum of $200, which he claims came from his own funds, but which the defendant claims he gave plaintiff for the very purpose of making the deposit. The purchase price was $10,000 and the additional $9,800 was paid by the defendant. Plaintiff claims that in addition to the $200, he paid the further sum of $1,800 to the defendant and it was agreed that the balance of $3,000 towards the plaintiff's one-half share would be regarded as a loan by the defendant, to be repaid later. The title was taken in the name of the defendant. Plaintiff claims that defendant agreed to deed him a one-half interest *182 in the property on the receipt of the $3,000 which defendant had advanced for the plaintiff. A few days after the purchase of the property, defendant leased it to Standard Oil Company, which in turn gave him a 1-year lease. The lease was renewed from year to year. At one time defendant paid $500 from his own funds for a tank for the station. Plaintiff claims that he paid $500 from his own funds at the time for gasoline for the tank. The taxes were paid from the receipts of the business. The relationship continued until 1949 when this suit was commenced. A divorce suit was pending at the time of the hearing in the instant case between plaintiff's wife, mother of the defendant, and the plaintiff. Possibly this was a cause of the business difficulties.

The sales tax returns each year after 1943, when the station was reopened, show that it was run solely in plaintiff's name, although he does not claim sole ownership. One exhibit consisting of a photostatic copy of an application for renewal of a sales tax license describes the business as a partnership, naming both plaintiff and defendant as partners. In the application for a new sales tax license made by defendant in 1943, after the purchase of the property, defendant states in his own handwriting "we were closed." In a letter to the department of revenue in September, 1943, asking for sales tax forms and the sticker for the window and giving business address as that of plaintiff, defendant also wrote, "I reopened the gas station again on September 14, 1943," defendant signing plaintiff's sole name and the address of the station. On other documents, codefendant signed plaintiff's name. Defendant attempted to explain away these obvious inconsistencies with his defense by stating that as plaintiff planned to purchase the business later, his name alone was used in the documents to the State. The trial judge was not impressed by the explanation. *183 It would serve no useful purpose to further detail the testimony or the recital in certain income tax returns. Notwithstanding some testimony or deductions therefrom in defendant's favor, the testimony preponderates in plaintiff's favor. The only questions raised on appeal are the claims that the findings of the judge were against the great and overwhelming weight of the evidence and that the evidence did not prove a partnership as claimed. We find no merit in either of these claims.

Plaintiff has not cross-appealed. He, however, contends in his brief that the trial court erred in finding that he still owed $3,000 to the defendant. He claims that the undistributed profits due him from 1939 to 1943 were more than sufficient to have paid the $3,000 as well as an additional amount. Even if the claim has any merit, we find none in the present record. Plaintiff waited over 6 years before asserting his claim. It comes too late for further consideration.

Plaintiff devotes considerable space in his brief to show that if the property was purchased by the partners as partnership property and plaintiff paid part of the consideration, it became partnership property and that the partner in whose name the title was placed is trustee for the partners. Williams v. Shelden, 61 Mich 311; Murray v. Keeley Institute of Western Michigan, 190 Mich 295. As defendant does not deny this statement of the law, it requires no further consideration.

The sole question of law that appellants raise, as applied to the facts, is that the photostatic copies of records of the sales tax and use tax division of the Michigan department of revenue should have been excluded as confidential communications under CL 1948, § 205.70, as amended by PA 1949, No 272 (Stat Ann 1950 Rev § 7.541), part of which provides that:

*184 "Unless in accordance with a judicial order, or as shall be required in proper administration of this act, no member of the department, or agent or employee thereof, or former member, agent or employee, shall divulge any facts or information obtained in connection with the administration of this act."

The exhibits were introduced in response to a subpoena duces tecum. The only objection made at the hearing was that the exhibits were irrelevant, incompetent and immaterial to prove a partnership. The new objection, now raised for the first time, even if it had any merit, comes too late to require further discussion.

The decree of the trial court is affirmed, with costs to plaintiff.

REID, C.J., and BOYLES, NORTH, DETHMERS, CARR, BUSHNELL, and SHARPE, JJ., concurred.