CONSOLIDATED FISHERIES COMPANY, a corporation of the State of Delaware, Thomas H. Hayes, an individual, and Richard C. Hayes, an individual, Appellants,
CONSOLIDATED SOLUBLES COMPANY, a corporation of the State of Delaware, and David Levin, an individual, Appellees.
Accounting proceeding brought against fish oil corporation by other party to joint adventure. From judgment of Court of Chancery, Sussex County, 107 A.2d 639, defendant appealed. The Supreme Court, 112 A.2d 30, reversed in part. Both parties petitioned for reargument, or for modification of directions with respect to special mandate to be entered. The Supreme Court, Wolcott, J., held that since Supreme Court was of opinion that some modification of its directions with respect to mandate was required, but the views of Supreme Court were unchanged upon basic issues of case, Supreme Court would dispose of petitions by means of supplementary opinion, and would not grant re-argument.
Directions with respect to contents of special mandate modified.
John Van Brunt, Jr., Wilmington, for appellants.
[35 Del.Ch. 179] Samuel R. Russell, Georgetown, and William Ginsburg, Philadelphia, Pa., for appellees.
SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and LAYTON, Judge, sitting.
After the filing of the opinion in this cause, 112 A.2d 30, both the appellants (hereafter called Fisheries) and the appellees (hereafter called Solubles) petitioned for re-argument, or for modification of the directions with respect to the special mandate to be entered. Upon considering the petitions for re-argument, we are of the opinion that some modification of our directions with respect to the mandate is required, but, since our views are unchanged upon the basic issues of the case, we will dispose of the petitions by means of this supplementary opinion, and will not grant re-argument.
Solubles asks for re-argument upon our holding that since Fisheries and Solubles were joint adventurers, Fisheries is entitled to be reimbursed out of profits for sums spent in the construction of the plant in excess of the total amount of $70,000, the maximum liability of Solubles. Solubles urges, as a reason for re-argument, that one of the arguments made by it to support its position that all sums spent in excess of $70,000 for plant construction were Fisheries' sole responsibility, was overlooked by us. This argument is that Fisheries under the agreements was the agent of Solubles and in expending more than $70,000 for plant construction had transgressed the bounds of its agency. This argument, however, is disposed of by our finding that Fisheries and Solubles were joint adventurers and that no agency relationship existed.
Solubles also urges that in an appeal from Chancery we may not examine the record to reach independent conclusions of fact, and that in making certain findings of fact and in overruling certain findings of the Vice-Chancellor, we violated the rule laid down in Blish v. Thompson Automatic Arms Co., 30 Del.Ch. 538, 64 A.2d 581, to the effect that if there is sufficient oral testimony in the record to support the findings of the court below, such findings will not be disturbed on appeal. We do not understand that our statement of our power [35 Del.Ch. 180] sitting in review of Chancery judgments conflicts with the rule laid down in the Blish case. On the contrary, we expressly stated that if the findings of the court below found support in the record, we would adhere to them. We were and are of the opinion that the record in the cause does not contain evidence of sufficient probative value to support the findings below. We are thus free in this cause, as in all Chancery appeals, to examine the record and make our own findings if, in our discretion, the record permits us to do so.
Thirdly, Solubles argues that our conclusion that it did not rely on any representations
of construction cost made by the agent of Fisheries does not apply to the increase by the agreement of May 31 of the maximum liability of Solubles from $50,000 to $70,000. We see nothing in this argument to change our conclusions with respect to the question of whether or not Solubles in fact relied to any extent upon the representations of cost made by Fisheries. We think it clear that no reliance in fact took place, and we think it clear also that the increase in the maximum liability of Solubles did not change the positions of the parties to any extent whatsoever.
Finally, Solubles asks that we make it clear that an $8,000 item for the installation of storage tanks, which the court below found had never been installed, be expressly declared an improper item to be allowed Fisheries on the accounting relating to the construction cost of the plant. We had thought there was no doubt that such was the effect of our opinion, but in order to remove any possible confusion on the point, we expressly affirm this finding of the Vice-Chancellor.
Solubles also asks us to make it clear that upon further accounting with respect to the cost of construction of the plant, it is free to attack upon the grounds of fraud and error the records of Fisheries offered by it to support its contentions in the accounting. We had supposed that there was no question of Solubles' right to do so, but again to remove any possible confusion, we expressly state that upon further ...