38 So. 881 | La. | 1905
Plaintiff and defendant were partners in a beef-market business in the town of Opelousas, La. Plaintiff did the purchasing of cattle and of other animals for the firm, and the driving of them to pasture: and the defendant attended to the butchery of the animals, the selling of the meat, and the keeping of the books and accounts. The partnership lasted from April, 1894, to March, 1899. At its termination the partners submitted the books to an accountant to cast up the account between them. The accountant found that, on full and final settlement of all accounts, the defendant, Giron, owed the plaintiff, Chretien, $497.79, and that there was an amount of seven or eight hundred dollars due the firm by customers, in small amounts.
After hearing evidence, the court concluded that the parties had not accepted as a settlement the result of the said casting up of their accounts, and overruled the exception.
Thereupon the defendant answered, and the case was tried as if no settlement had ever taken place. As the result of the trial, the parties have changed sides. The plaintiff is now occupying the position which defendant occupied in the exception; that is to say, he is insisting that the balance, $497.-79, found by the accountant should be taken as the basis of settlement, and that defendant is estopped from contesting that balance, and the defendant is insisting that a settlement should be made according to the evidence on the trial.
Plaintiff is estopped from asserting that the previous accounting between the parties was accepted as a settlement, and the defendant is estopped from asserting that it was not accepted, and the result is that the two estoppels destroy each other, and set the matter at large. A. & E. E. of L. vol. 11, p. 392.
Defendant has clearly shown that his disbursements for the firm exceeded his receipts by $145.50. Plaintiff owes him, therefore, one-half of this, or $72.75.
After the dissolution of the partnership he was not, in the absence of any further agreement, under any greater duty to collect the outstanding accounts than plaintiff was, but he himself testified on the trial of the exception of no cause of action that he agreed to collect these accounts. And since he admits that he collected some of them, and otherwise leaves the matter at large, he, unde* familiar principles, must be held bound for the entire amount, say $750, of which plaintiff’s share would be $325.
Deducting the $72.75 from this $325 leaves a balance of $252.25, for which plaintiff must have judgment against him.
The claims of defendant in reconvention have a certain staleness about them. Defendant was mistaken as to some, and may be mistaken as to others. They are disallowed.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be reduced to $252.25, and, as thus amended, be affirmed. Plaintiff to pay costs of appeal.
