MALICK ET UX v. Malick

208 Or. 107 (1956)

298 P.2d 841

MALICK ET UX v. MALICK

Supreme Court of Oregon.

Argued May 7, 1956.

Affirmed as modified June 20, 1956.

Petition for rehearing denied July 11, 1956.

Mark V. Weatherford argued the cause for appellants. On the briefs were Weatherford and Thompson, Albany.

*108 Rupert E. Park, Redmond, argued the cause and filed a brief for respondent.

Before WARNER, Chief Justice, and TOOZE, LUSK, BRAND and PERRY, Justices.

AFFIRMED AS MODIFIED.

PER CURIAM.

This is a suit for an accounting incident to the dissolution of a partnership. The trial court entered a decree and judgment in favor of defendant H.H. Malick against plaintiff F.L. Malick in the sum of $1,757.92, together with interest thereon at the rate of 6 per cent per annum from September 30, 1955. Plaintiff appeals.

1, 2. No disputed questions of law are involved on this appeal. The issue before us is simply one of fact. After hearing the evidence on the trial, reviewing a transcript thereof, together with the exhibits, and considering briefs filed by the parties, the able and highly experienced trial judge made and filed of record a detailed analysis of the evidence respecting the accounts of the parties, and struck a balance between them. We are impressed with the court's findings upon the disputed questions of fact. Although upon an appeal in an equity proceeding we are required to try the case de novo, making our own independent investigation of the facts as disclosed by the record before us and arriving at our own conclusions respecting them, nevertheless, upon disputed questions of fact we always give great weight to the findings of the trial judge, but in no sense being bound by them. Hunter v. Hunter, 207 Or 219, 295 P2d 195, 196; Nelson v. Hampton, 206 Or 573, 294 P2d 329, 333.

3. Except for one slight modification, we find no cause for disturbing the findings of fact and decree *109 of the trial court in this case. Commencing on page 55 of his brief filed in this court, defendant sets forth what he terms as "Recapitulation Number 4." This is defendant's statement of the account between the parties. Under it, defendant arrives at a balance due him from plaintiff in the sum of $1,353.96, rather than the sum of $1,757.92 as found by the trial court. We adopt this sum so set forth in the recapitulation prepared by defendant as the sum owing from plaintiff to defendant. The decree will be modified by entering judgment in favor of defendant against plaintiff in the sum of $1,353.96, with interest thereon from October 1, 1955, until paid, at the rate of 6 per cent per annum. Except as modified, the decree is affirmed. Neither party shall recover costs.