On the original hearing in this case, appellant directed the attack at three major propositions: (1) That the trial court was in error in finding that the transactions between Newton and Megeath constituted an open and mutual running account. In the original opinion herein (Newton v. Tracy Loan Trust Co.,88 Utah 547, 40 P.2d 204, we sustained the trial court in its position as to that matter. The rehearing developed nothing to justify a change from that position. (2) That the trial court erred in admitting in evidence certain ledger sheets purporting to be an account between the parties. For the reasons also stated in the former opinion, we think the trial court did not err in admitting the evidence objected to. (3) The third major proposition was that the theory of plaintiff's case and especially the testimony of Mrs. Newton was incredible. We have again read the complete record of Mrs. Newton's testimony and reviewed some of the other testimony several times, and have rechecked the questioned testimony, and find no reason to recede from the position taken particularly as to Mrs. Newton's testimony. She was, when all the situation is analyzed, a fair witness. That some errors and mistakes were evidence, she readily admitted and corrected to the best of her knowledge on the subject.
These same propositions were reargued and resubmitted on the rehearing. In addition to those general propositions, certain specific items were urged which might be construed to fall within the general assignment of insufficiency of the evidence. Upon the reargument, appellant argued three specific items not argued upon the former hearing, two of which were covered by assignments; one of which was not, unless included within the blanket assignment. *Page 570
No assignment is made as to the item of interest allowed by the trial court. There is some evidence to the effect that interest was paid to Megeath upon the avenue houses. The exact amount of interest does not appear specifically from the evidence, nor the dates nor amounts upon which 1 interest was calculated. In the claim filed with the administrator, the following statement is made:
"Claimant has not yet computed the interest on said claim by reason of not having access to all the records of the transactions mentioned in the foregoing statement. Such information will be furnished the executor as soon as possible."
As indicated, there is evidence showing that plaintiff was entitled to some interest. There being no assignment directed specifically to interest, it was assumed the interest calculation was correct. We, upon an attempted check of the matter, do not find the elements from which we can determine the amount of interest as found by the court. In the absence of an assignment on the matter, and as the trial court seems to have carefully tried the cause and checked each item allowed, we think we are not in a position to question the interest item.
It is however, argued with much earnestness that the court erred in failing to allow Megeath a credit of $2,200 about which the witness Jenkins testified, relating to the Lynndyl venture. This proposition was duly assigned as error and referred to in appellant's brief, but was not stressed in argument. The record is most difficult of analysis and 2 application. It does appear that the witness Jenkins, while testifying for plaintiff, referred to a number of checks received by him from Newton, as to one or more of which we have not been able to discover the application made, yet he testified definitely that Mr. Megeath paid $2,200 in cash upon the Lynndyl townsite notes. The trial court may have been able to make application of some evidence that is not clear to us, or that we are unable to discover or apply as the trial court did. We find no contradiction *Page 571 of this evidence. We have not been able to discover any credit given to Megeath for that amount, or, if credited, we have not been able to identify it. For that reason, it would appear that the judgment entered by the district court should be reduced.
The trial court in framing its findings took the claim of plaintiff as presented to defendant executor, and disallowed certain items therein claimed. By the claim presented, plaintiff demanded, as shown by the findings, the payment of the sum of $12,506.92. The trial court found this claim to be true in all respects except as to the items and deductions made therefrom. In making the deductions and reducing the findings to final form, the trial court said:
"The court strikes from said account the following items, to-wit:*Page 572"In Re: Montana Oil Venture:
Oct. 1924 .................................... $ 110.00 Feb. 1925, item of $105.00 reduced to ........ 25.00 March 1, 1925 ........................ 2,693.25 $ 2,828.25 _________ __________ "In addition thereto the deceased paid to acquire the property in Montana, the sum of ........................... $5,500.00 of which amount he received from plaintiff the sum of ................. 4,130.00 leaving him a net credit of ............ 1,370.00
Also there was expended by the deceased and plaintiff in the operation or development of said lands the sum of ........................... 4,800.00 of which ................................ 1,674.14
said deceased received from plaintiff, and for the expense of said development the deceased was entitled to a credit of ............................ 3,125.86
In re: Lynndyl Holding Company:
The court strikes from said account the item of .......................... 3,700.00 the item of .......................... 800.00 and a lumber bill of $200.00 is reduced to (by) ............................ 7.14 4,507.14 _________ __________ $11,831.25
"That by said account the plaintiff charged the deceased and made claim for 50% of the items so stricken, and that the deceased is entitled to a credit of 50% of the net amounts advanced by him, as aforesaid, and that there is therefore deducted from the account of plaintiff, to-wit, the sum of $12,506.92, 50% of said sum of $11,831.25, to-wit, $5,915.62."
It is further found by the trial court:
"That the said deceased is entitled to a further credit of 100 per cent of the difference between the amount credited in said account of a note in the sum of $770.00, and the true amount of said note, to-wit, $773.25, to-wit, the sum of $3.25, and that there was due, owing and payable from the defendant executor, as aforesaid, on the 3rd day of March, 1930, when said account was presented to said defendant for payment, as aforesaid, the sum of $6,588.05."
Therefore, when the executor is allowed a further credit for 50 per cent of the amount of the Jenkins payment on the Lynndyl venture, to wit, $2,200, the amount then to be deducted from the $12,506.92 would be 50 per cent of the sum of $11,831.25, plus $2,200, or $14,031.25. Fifty per cent of this last amount leaves a net amount of $7,015.62 to be deducted; this being the same result as deducting the sum of $1,100.00 from $6,588.05, or $5,488.05. Arithmetically stated, $11,831.25 divided by 2 equals $5,915.62. This last amount subtracted from $12,506.92 leaves a balance of $6,591.30, from which the trial court deducted the sum of $3.25 as provided in the paragraph last above quoted, making the amount of the judgment entered the sum of $6,588.05. The court is unanimous in the view that the last-mentioned sum should be reduced by 50 per cent of the Lynndyl payment, thus reducing the amount to $5,488.05.
A majority of the court are of the opinion that the executor should be allowed a further credit of 50 per cent. of the sum of $2,994.75 on the Montana oil deal, thus reducing the judgment of $5,488.05 by $1,497.37, thus reducing the net amount of the judgment to $3,990.68. From this last proposition a minority of the court dissent and support the findings of the trial court in relation thereto. The majority of *Page 573 the court are indicating herewith their views upon the matter upon which we have been unable to agree. All, however, are agreed that the respondent should be allowed to accept the reductions as herein indicated, and if the same are accepted within 20 days from the filing of this opinion, the judgment as modified will be affirmed, with costs to the respondent. But, unless the respondent accepts such reduction within such time, the cause will be remanded to the trial court for a new trial, with costs to appellant. Upon the exercise of the option herein provided for, the final order in harmony therewith will be duly entered.
FOLLAND and EPHRAIM HANSON, JJ., concur.