NELSON v. ABRAHAM

Reset A A Font size: Print

District Court of Appeal, First District, Division 1, California.

NELSON v. ABRAHAM.

Civ. 12878.*

Decided: April 03, 1946

Hardin, Rank, Meltzer & Fletcher, of Oakland, for appellant. Raymond Salisbury and Joseph C. Prior, both of Oakland, for respondent.

Plaintiff, Julius Nelson, brought this action against defendant, Isaac Abraham, for the dissolution of an alleged partnership, for an accounting and for general relief. The trial court found that plaintiff had no interest in the assets or profits of the business and on that ground entered its judgment for defendant and denied plaintiff any relief. From this judgment plaintiff appeals.

The facts are as follows: For many years the defendant had been engaged in the business of manufacturing and selling ice in Oakland under the firm name of Independent Ice Company. Plaintiff had been in the employ of defendant as a salesman for over six years. Defendant's Oakland business had been adversely affected by competition from certain San Francisco firms, and, in 1940, defendant began to plan some method of expansion. He finally determine to open a San Francisco branch. To this end he held several conferences with plaintiff, promising plaintiff that if he would work on the San Francisco end, he, the defendant, would ‘take care’ of plaintiff. In the latter part of October, 1940, plaintiff and another salesman started two San Francisco ice routes, and shortly thereafter a San Francisco office was opened. During the early months of the venture the ice was manufactured and stored in Oakland, and the San Francisco delivery trucks picked the ice up at the Oakland plant. During these early months all moneys collected in the operation of the San Francisco branch were turned over to the Oakland office and accounts payable by the San Francisco office were paid out of the Oakland office. Plaintiff was paid a monthly salary by check from the Oakland office in the same amount—$185 per month—as he had received while working in Oakland.

The San Francisco venture, through the efforts of plaintiff, apparently was advantageous to defendant, and defendant determined to expand it. On September 1, 1941, he leased a lot in San Francisco and moved a building thereon which was thereafter used for storage and office purposes. Until about this time, although plaintiff had been promised that he would be taken ‘care of’ if he would undertake to build up the San Francisco business, no definite arrangement had been agreed upon. Plaintiff admits that until September of 1941 he was a mere employee. It was his theory in the trial court, and it is his theory on this appeal, that at this time he and defendant entered into an oral agreement of partnership in reference to the San Francisco business whereby the interest of the partners were to be 2/323 to defendant and 1/313 to plaintiff. Plaintiff testified and produced evidence, which, if it had been believed by the trial court, would have amply supported a finding that after September 1, 1941, such a partnership existed. Defendant flatly contradicted plaintiff as to the nature of the relationship. He testified that at no time did plaintiff have any interest in the business or assets of the company—that the arrangement was that plaintiff should be an employee with a 1/313 interest in the profits from the San Francisco operation. The trial court has settled this conflict in favor of defendant. Whatever our views may be as to the weight of the evidence, there being substantial credible evidence to support the finding, we have no power to disturb the finding. It must be accepted as the fact that whatever the relationship of the parties was after September 1, 1941, it was not that of partners. Defendant admits, however, that plaintiff was something more than a mere salaried employee. Under the direct examination of his own counsel he testified as follows as to the relationship of the parties (R.T. p. 334): ‘Q. Did you ever have any talk at any time during the time that the business was being carried on in San Francisco as we have related from October 22, 1940, up until the time that the business was closed in 1942 * * * with Mr. Nelson regarding his participation in any of the profits, whether they were operating profits or what they may have been? A. Yes Sir.

‘Q. You did have such a conversation? A. Yes.

‘Q. When was it you first talked to him about it? A. It was around the month of August, August, 1941. * * *

‘Q. Will you tell us in substance, that is, as near as you can recall, I realize you cannot recall the exact wording probably, what was said at that time by you and by he? A. Mr. Nelson came that morning about 9:00 o'clock * * * So he said, ‘Isaac, can I see you outside on the sidewalk,’ and I said ‘Sure,’ and we went out. He said, ‘Now, before I go any further I would like to know what my part is going to be in this business.’ I told him ‘I will tell you just exactly what I am going to do with you; I will give one one-third of the net profits from the operation of the business.’ I explained, ‘If I made $3,000 net profits out of the San Francisco operation, $1,000 is yours.’ I asked him if that was satisfactory, and he said, ‘Yes.’ I told him, ‘You understand now, you will not have any interest in the business whatsoever.’ * * *

‘Q. So on that occasion you told him you would give him one-third of the net profits received from the operation of the business? A. That is right.

‘Q. Without any interest in the business itself? A. Yes, as long as he stays with me.’

On cross-examination defendant testified as follows (R.T. p. 358): ‘A. As I said, Mr. Nelson came in that morning, I am sure it was about 9:00 o'clock. He told me he wanted to see me. I said ‘Come right along; I want to see you.’ He came up there and I came up there and he said, ‘What is my part going to be in the business?’ I said, ‘Mr. Nelson, I told you in the beginning I will give you one-third of the net profits from the operation of the business. In other words, If I make $3,000 profit from the operation of the business, your share will be $1,000 and my profit will be 2,000; but remember you have no interest in the business. * * *

‘Q. In other words, you tole him ‘As I always told you, you will have one-third of the net profits of the business?’ A. That is right.

‘Q. You said, ‘Remember this, you won't have any part of the business; you will not own any part of the business, but you will have one-third of the net profits?’ ‘A. You will have one-third of the net profits of the operation of the business.’'

In admitting that the testimony given by him on his deposition to the effect that he had never discussed profits with plaintiff was untrue, defendant testified (p. 388): ‘I told him I would give him one-third out of the net profits of the San Francisco business. * * * Well, I am telling you right now, I told him I will give him one-third from the net profits of the San Francisco operation of the San Francisco business and further than that he has no interest in the business whatsoever * * *.’

It is an admitted fact that after September 1, 1941, the method of carrying on the San Francisco business was drastically changed. Plaintiff thereafter assumed charge of the San Francisco business, and it was operated as a unit distinct from the Oakland business. Separate books were kept for the San Francisco business by the same bookkeeper who kept the Oakland books and who, in 1941, married plaintiff. A bank account was opened in San Francisco wherein plaintiff deposited all receipts from the San Francisco business. Either plaintiff or defendant could draw checks on this account, but the evidence shows that plaintiff alone signed the checks for the San Francisco end of the business. A retail sales tax permit was secured for the San Francisco business from the State Board of Equalization and it was signed by plaintiff and defendant as joint operators of the business. The San Francisco branch purchased its ice from the Oakland company, paying regular platform prices therefor, and the San Francisco branch assumed all hauling charges. This ice was billed to the San Francisco branch by the Oakland company in the same manner that all customers were billed. Plaintiff did the hiring and firing, fixed prices, handled credits and collections, and otherwise generally managed the San Francisco branch. He continued to draw his regular salary of $185 per month. It is an admitted fact that from September 1, 1941, to March 31, 1942, under the management of plaintiff, the San Francisco branch continued to expand and its volume of business materially increased. All of the physical assets of the company—the office building, furniture, trucks, ice equipment, capital, etc.—were furnished by defendant. Plaintiff furnished no part of the capital or the physical assets, but it is not denied that he devoted many extra hours of work beyond those of an ordinary employee to the management of this business.

The evidence of defendant shows that prior to March 31, 1942, the defendant, without informing plaintiff, commenced negotiations with the representatives of the Union Ice Company and the City Ice Company looking toward the sale of the San Francisco branch to these companies. This sale was consummated on March 31, 1942. Shortly prior thereto plaintiff learned of the negotiations. While defendant was meeting with the proposed purchasers at the office of the Union Ice Company in Oakland plaintiff entered and asserted he was the owner of a one-third interest in the business and entitled to sit in the meeting. The representatives of the two companies asked defendant if this was true, and defendant made no denial and acquiesced in plaintiff's presence for the balance of that meeting.

As the result of subsequent meetings at which plaintiff was not present, defendant completed the sale on March 31, 1942. The defendant received $14,000 in cash, several ice routes in Oakland and an ice contract to run for five years with an option for an additional five years, as the price of the San Francisco branch.

On April 7, 1942, shortly after the sale was completed, plaintiff asked defendant for an accounting and defendant, according to his testimony, replied that the monthly operating reports of the San Francisco branch, which reports had been prepared by plaintiff's wife as the bookkeeper, showed a net operating loss of $2,090. This was admittedly computed by not including any profits from the sale of the business. Plaintiff and his wife testified that if only the $14,000 cash received on the sale were considered there was a $5,000 net profit of which plaintiff was entitled to one-third.

On this evidence the trial court found, so far as is pertinent here, that the parties were not partners; that plaintiff has no right, title or interest in and to the business, nor in and to any of the assets thereof; that ‘said plaintiff is not entitled to any of the assets of said business or any of the profits derived from the operation and sale of said business.’ The conclusions of law recite that the parties are not partners and that the ‘plaintiff does not have any right, title, or interest in and to’ the San Francisco business ‘nor in and to any of the assets thereof or any of the profits derived from the operation of said business either as a copartner thereof or otherwise * * *.’ Judgment was entered accordingly denying plaintiff any relief by way of an accounting or otherwise.

The plaintiff devotes the major portion of his briefs to the contention that under the evidence the parties were partners or at least joint adventurers, and he makes much of the failure of the court to find expressly on whether or not the San Francisco project was a joint adventure. The parties exhaustively discuss the legal nature of a joint adventure.

As to these contentions we are of the opinion, first, that the finding negativing the existence of a partnership is supported by substantial evidence. On that issue the evidence was sharply conflicting. This court has no power to substitute its view of the weight of the evidence for that of the trial court. In the second place, although the trial court did not in so many words negative the existence of a joint adventure, its findings are broad enough to negative such a relationship, and such finding is likewise supported. The court found that plaintiff had no interest in the business nor in and to any of the assets of the business. That finding is broad enough to negative the existence of a joint adventure in its technical sense. After all, the finding is as broad or broader than the allegations of the pleadings and the parties should not be permitted to complain, under such circumstances, that the findings are not more specific.

But the determination that neither a partnership nor a joint adventure relationship existed is not determinative of this appeal. The trial court also found that plaintiff was not entitled to ‘any of the profits derived from the operation and sale of said business.’ That finding is not only totally unsupported by the evidence but it is directly contrary to defendant's own testimony heretofore quoted. Defendant admits that he agreed that plaintiff was entitled to ‘one-third of the net profits from the operation of the business.’ That is undisputed. The true relationship between these parties, according to defendant, was that of employer-employee, but plaintiff was to be paid by a salary and a share of the profits. The real question presented is whether such an employee is entitled to an accounting in order to ascertain whether there were any profits.

On this question the law is settled. The right to an accounting is not limited to the partnership or joint adventurer relationships. Whatever the relationship of the parties may be, if, by contract, one of the contractors is entitled to a share of the profits of the venture, that person can compel the other contractor to account for any profits received. This duty to account arises whenever one party is in possession of profits in which another party is entitled to share. If an employee is entitled to a share of the profits he can compel his employer to account for any profits received, and this rule applies even though the employee mistakenly alleges the relationship to be that of partnership or joint adventurers. If this were not the law there would be no way to ascertain whether any profits had been made, or to ascertain the amount of such profits. The rule is well illustrated by the case of Coward v. Clanton, 122 Cal. 451, 55 P. 147. There the complaint, as in the instant case, averred a partnership for the purchase and sale of real estate, and requested an accounting. The defendant denied such allegation, but admitted that he employed plaintiff as a broker to sell certain land under a contract by which, after expenses and costs were deducted, plaintiff was to receive as salary one-half of the net profits. It was held that plaintiff was entitled to an accounting. At page 453 of 122 Cal., at page 148 of 55 P. the court states: ‘The fact that the relation is wrongly averred to be that of partners is not material. If a case is stated which entitles the plaintiff to relief, it matters not that the contract which is correctly set out is wrongly called a contract of partnership. I do not understand the suggestion that the court has no jurisdiction to compel an accounting unless a partnership was created. If plaintiff has a cause of action of which the court has jurisdiction, and it is necessary to have an accounting to determine his rights, it will be done. [San Pedro] Lumber Co. v. Reynolds, 121 Cal. 74, 53 P. 410. Whether the facts would have given jurisdiction to a court of equity is of no consequence. We have no such courts, but our courts afford the remedies to which the facts may show the parties are entitled, whether legal or equitable.’

The same rule was announced in Brea v. McGlashan, 3 Cal.App.2d 454, 39 P.2d 877. There it was alleged that plaintiff was employed by defendant to solicit contracts for radio advertising; that she was to be paid a percentage of the sums paid by the advertisers secured by her; that she procured certain contracts; that an accounting was necessary. In holding that plaintiff, although but an employee, was entitled to an accounting, the court stated in 3 Cal.App.2d p. 460, 39 P.2d 879: ‘Under our system of pleading, a cause of action for accounting need only state facts showing the existence of the relationship which requires an accounting and the statement that some balance is due the plaintiff. Whann v. Doell, 192 Cal. 680, 684, 221 P. 899. Ordinarily, no accounting is necessary between an employer and an employee. But where, as here, the payment is alleged to be in the form of a percentage of the moneys received by the employer, and the complaint alleged that the plaintiff did not know what moneys had been received through contracts procured by her, an accounting would be the only method of arriving at the amount due.’ See, also, Arbuckle v. Clifford F. Reid, Inc., 118 Cal.App. 272, 4 P.2d 978; Bernstein v. Sirotta, 213 Cal. 21, 1 P.2d 8; see annotation in 137 A.L.R. 6, where at pages 172–174 the cases on this point are collected and commented upon.

It seems obvious, therefore, that in the present case, since it is an admitted fact that plaintiff was employed under a profit sharing agreement, that he is entitled to an accounting to determine whether there were any profits, and, if so, to a determination of the amount of such profits. The trial court was apparently of the view that unless the parties were partners plaintiff was not entitled to an accounting, and its findings are based on that theory. That theory is not sound, and the judgment based thereon must be reversed.

Although the parties, including defendant, spend the major portion of their briefs discussing the questions as to whether a partnership or joint adventure existed, the defendant recognizes and tacitly admits that the finding that the plaintiff was not entitled to any profits is unsupported by and contrary to the evidence, but at the oral argument, and to a certain existent in his briefs, he argues that the erroneous finding is not prejudicial because, so he contends, the uncontradicted evidence shows that there were no profits. That contention is not supported by the record. It is true that the evidence shows that from September, 1941, when the profit sharing agreement was entered into, until March 31, 1942, when defendant terminated the arrangement by selling the San Francisco branch, that branch, except for one month, took in less money that it paid out. Both parties testified to this fact, although they differ as to whether the monthly profit and loss statements, prepared by plaintiff's wife as bookkeeper, and which show a $2,090 net loss for this period, included all proper items. It is this evidence upon which defendant relies to support his contention that the uncontradicted evidence shows that there were no profits. The error in defendant's reasoning is that it assumes that, as a matter of law, the contract did not include any profits realized from the sale of the business. The contract that was entered into according to defendant's own testimony, and disregarding as we must plaintiff's testimony, was that plaintiff was to receive for his share, his salary, and ‘one-third of the net profits from the operation of the business. * * * If I made $3,000 net profits out of the San Francisco operation, $1,000 is yours. * * * Without any interest in the business itself.’ Defendant also testified that he told plaintiff in fixing his rights: ‘* * * I told you in the beginning I will give you one-third of the net profits from the operation of the business. In other words, if I make $3,000 profit from the operation of the business, your share will be $1,000 and my profit will be 2,000; but remember you have no interest in the business. * * *’ In admitting certain statements in his deposition were untrue defendant defined plaintiff's rights. He testified: ‘I told him I would give him one-third out of the net profits of the San Francisco business.’ This is defendant's own testimony as to the terms of the contract. The question is, what does this contract mean? If it be assumed that the San Francisco branch took in less money than it paid out can it be said, as a matter of law, that there were no ‘net profits from the operation of the business' when the evidence shows, without contradiction, that a net profit was realized from the sale? It is quite apparent that this contract could reasonably mean one of two things, either the plaintiff's share was to be limited to a share of net profits, if any, shown by daily receipts and expenditures, or plaintiff was to be entitled to a share of all profits resulting from the operation of the business. While the ordinary meaning of net profits from operation may well be that it does not include profits realized from a sale, there is, of course, no legal reason why the parties cannot contract that such profits should be included. The circumstances here existing, as shown by the evidence most favorable to defendant, discloses that defendant wanted to open a new outlet. He had an employee whose services over six years had been entirely satisfactory. As an incentive to the employee he agreed that if plaintiff would operate the San Francisco branch and build it up, plaintiff would be entitled to one-third of the net profits from its operation. Defendant was to furnish all equipment and capital; plaintiff was to furnish his services. The uncontradicted evidence shows that through the sole efforts of plaintiff the San Francisco branch developed into a valuable adjunct to the Oakland business, so valuable, indeed, that competitors decided to buy the business. Plaintiff was to be entitled to one-third of the net profits realized from the operation of the business. When the parties entered into this contract neither contemplated that there would be a sale. Both contemplated, and at that time intended, that the San Francisco branch would be continued. What the rights of the parties should be in the event of a sale must rest upon inference. It is certainly a possible and reasonable inference that if the business should be sold defendant should first receive the amount paid for the physical assets turned over to the purchaser. That could explain defendant's insistence that plaintiff had no ‘interest in the business.’ Then if, after all proper expenses of operation were deducted, there was still a net profit, plaintiff was to be entitled to a one-third interest therein. It certainly can be reasonably argued that any such net profit resulted from the operation of the San Francisco branch. From what other source could the profit have been realized? It can be argued that it was because the San Francisco branch was in operation that defendant was able to sell it.

Enough has been said to demonstrate that there are two possible reasonable interpretations of this contract. Because the contract was oral, and because considerable extrinsic evidence was offered to interpret it, the question of interpretation is one of fact and not one of law. The trial court has not passed upon this question of fact. It found that plaintiff was not entitled to ‘any of the profits derived from the operation and sale of said business,’ and it concluded that plaintiff has no right at all to ‘any of the profits derived from the operation of said business either as a copartner thereof or otherwise.’ It did not determine whether there were any profits of any kind, whether from operation or otherwise. Admittedly the plaintiff was entitled to a one-third interest in the ‘net profit’ realized ‘from the operation’ of the business. Admittedly the quoted finding and quoted conclusion are contrary to the evidence. The trial court did not attempt to define what was meant by the phrase ‘net profits from the operation of the business' for the simple reason that it found, contrary to the evidence, that plaintiff, in any event, was not entitled to any profit at all whether from ‘operation’ or otherwise. The theory of the trial court as set forth in the findings was that because it found that there was no partnership it followed that plaintiff was not entitled to share in any profits of any kind. That is an erroneous theory. Under the circumstances both parties are entitled to a specific finding interpreting the contract. If the court should find in plaintiff's favor on this issue, plaintiff is entitled to an accounting. If it should find in favor of defendant no accounting is necessary.

The judgment appealed from is reversed.

I dissent. I agree that the determinative question on appeal concerns the interpretation of the contract between plaintiff and defendant. If plaintiff's interpretation of the contract must necessarily as a matter of law be accepted, then our system of jurisprudence gives him the adequate remedy of an accounting regardless of the legal attributes of a partnership or a joint venture. A re-examination of the record has convinced me that the finding that plaintiff is not a partner is broad enough to negative the existence of a joint venture relationship and is supported by the evidence. It is with that portion of the majority opinion which states that ‘The trial court was apparently of the view that unless the parties were partners plaintiff was not entitled to an accounting, and its findings are based on that theory,’ and the conclusion drawn therefrom that ‘The trial court has not passed’ upon the ‘two possible reasonable interpretations of’ the contract between the parties, that I disagree. In the face of the findings, there is no merit in the majority opinion's conclusion that the trial court passed only on the partnership issue and did not pass on the contract terms.

The pertinent findings of fact and conclusions of law read as follows: ‘That it is true that on or about the 31st day of March, 1942, said defendant was conducting a certain business in the City and County of San Francisco under the firm name and style of Independent Ice Company; that on or about said date, he sold all of the assets of said business and received therefor a valuable consideration; that on or about said date, he received the consideration for said sale and used the same solely and entirely for his own individual purposes; that it is not true that said business, conducted by him under the firm name and style of Independent Ice Company, was conducted as a copartnership business of which said copartnership, said plaintiff was a partner; that said plaintiff had no right, title, or interest in and to said partnership business nor in and to any of the assets thereof; that it is true that said defendant has at all times refused to account to said plaintiff or to turn over to said plaintiff any part or portion of any of the profits from the operation and sale of said business; that said plaintiff is not entitled to any of the assets of said business or any of the profits derived from the operation and sale of said business.’

‘As conclusions of law from the foregoing facts, the court finds that said plaintiff and said defendant were not at any of the times alleged in said complaint or at all copartners transacting business under and by virtue of any copartnership arrangement had or entered into between them, and that said plaintiff does not have any right, title, or interest in and to that certain business conducted in the City and County of San Francisco by plaintiff under the firm name and style of Independent Ice Company nor in and to any of the assets thereof or any of the profits derived from the operation of said business either as a copartner thereof or otherwise and that said defendant is entitled to judgment against plaintiff for his costs of court expended in the defense of said action, and judgment is hereby ordered to be entered accordingly.’ (Emphasis added).

It is true that the theory upon which the plaintiff rested his case was that there was a partnership between him and defendant and this fact explains the emphasis upon the negation of such relationship between the parties in the findings. However, even the majority opinion admits that the findings are broad enough to cover the absence of a joint adventure agreement. In concluding this, the majority opinion follows the well-recognized rules for construal of trial court findings to support the judgment. The findings—‘that said plaintiff had no right, title, or interest in and to said partnership business nor in and to any of the assets thereof,’ and ‘that said plaintiff is not entitled to any of the assets of said business or any of the profits derived from the operation and sale of said business'—if broad enough to include a finding of the absence of a joint venture relationship, are also broad enough to include findings as to the terms of the contract between plaintiff and defendant as to shares in the business and its profits, if any.

This is not a case where the interpretation of the contract between plaintiff and defendant is solely a question of law to be determined by the appellate court without resort to the extrinsic evidence which the trial court had before it, from the four corners of a document. Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825. What the terms of the contract between defendant and plaintiff were was the basic issue before the court inasmuch as the contract was oral and defendant's and plaintiff's versions disagreed. When the contract is oral, and the inferences from the testimony relative to its scope may be conflicting, the conclusions of the trial court are binding if supported by substantial evidence. Brea v. McGlashan, 3 Cal.App.2d 454, 465, 39 P.2d 877; Estate of Rule, 25 Cal.2d 1, 17, 152 P.2d 1003, 155 A.L.R. 1319; Trowbridge v. Love, 58 Cal.app.2d 746, 750, 137 P.2d 890. The appellate court must accept the defendant's version of the contract terms as accepted and quoted in the majority opinion: “If I made $3,000 net profits out of the San Francisco operation, $1,000 is yours * * * without any interest in the business itself.' Defendant also testified that he told plaintiff in fixing his rights: ‘* * * I told you in the beginning I will give you one-third of the net profits from the operation of the business. In other words, if I make $3,000 profit from the operation of the business, your share will be $1,000 and my profit will be 2,000; but remember you have no interest in the business * * *.” (Emphasis added) The reasonable conclusion reached by the trial court from such language, as evidenced by the findings and conclusions of law, is that the employee would receive, as he did receive, his regular salary plus one-third of the net profits from the ‘operation’ of the business ‘without any interest in the business itself.’ Plaintiff had accepted an interest in the ‘operation’ but not in the ‘ownership’ of the business. See Boradori v. Peterson, 86 Cal.App. 753, 261 P. 520. In brief, the trial court approved the defendant's interpretation that ‘net profits from the operation of the business' was not intended to be used in the sense of ‘capital gains,’ and that plaintiff was not to share in the capital losses of the business, and, in the light of the circumstances, it was not unreasonable to interpret the parties' language that the plaintiff was not entitled to share in the capital gains.

This leaves for consideration the sole question whether the finding that plaintiff ‘is not entitled to * * * any of the profits derived from the operation * * * of said business' necessitates a reversal in view of the uncontradicted testimony of defendant that plaintiff was to receive ‘one-third of the net profits from the operation of the business.’ In view of the record as summarized in the majority opinion, and of my view of the weight to be accorded the trial court's findings that plaintiff was not entitled to a share in the assets or in the profits from the sale of the business, this seemingly contradictory finding is readily explainable. The majority opinion states: ‘It is true that the evidence shows that from September, 1941, when the profit sharing agreement was entered into, until March 31, 1942, when defendant terminated the arrangement by selling the San Francisco branch, that branch, except for one month, took in less money than it paid out. Both parties testified to this fact, although they differ as to whether the monthly profit and loss statements, prepared by plaintiff's wife as bookkeeper, and which show a $2,090 net loss for this period, included all proper items.’ In view of this evidence this finding should be read as a finding that there were no profits to which plaintiff was entitled. If there is any doubt on this subject, for the purpose of obviating further proceedings this court could make its own finding. Code Civ.Proc. sec. 956a.

Further in support of the conclusion reached herein is the general principle that where a finding could only be adverse to the appellant, he cannot complain that more detailed findings were not made. On the record before the court, and the view it took of the contract terms, to have ordered an accounting would have been an idle act which the law does not require. Both parties knew there were no profits from the operation of the business, but only from the sale, which profits the trial court concluded were not within the terms of the contract between plaintiff and defendant. The result the majority opinion reaches permits the plaintiff to litigate twice just what were the terms of and the intent of the parties to the contract even though the basic issue is one of fact which the trial court has once determined adversely to appellant.

Under all the facts and circumstances of the case, in view of the rule that an appellate court should if possible construe the findings to support the judgment, Tupman v. Haberkern, 208 Cal. 256, 280 P. 970; Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183; Estate of Bristol, 23 Cal.2d 221, 143 P.2d 689; Peri v. Los Angeles Junction Ry., 22 Cal.2d 111, 137 P.2d 441, I am unable to agree that the judgment should be reversed.

PETERS, Presiding Justice.

SCHOTTKY, Justice pro tem., concurs.