| Wis. | Jan 15, 1871
The plaintiff was dissatisfied with the award of the arbitrator, and brought this suit for the purpose of correcting certain mistakes made by him. The circuit court vacated the award, and referred the cause to a referee to examine the accounts between the parties, and to take proofs in respect to “ all matters of book accounts and transactions existing between them, as co-partners and otherwise, prior to the date of said submission.” And now the main objection to the report .of the referee is, that it embraces matters and accounts not fairly coming within the order of reference. It seems to us that this objection is untenable.
It is very obvious that, in order to ascertain and determine the true state of the partnership accounts under the co-partnership formed in May, 1865, it was necessary to inquire what amount of capital the defendant contributed to and put info the partnership business at that time. The testimony showed that this firm succeeded another, of which both these parties were members, and that the defendant’s capital and profits in the old firm were carried forward and invested in the business of the new one. What, then, was the amount of this capital and of these profits which the books showed the defendant should be credited with,
It is impossible for us to say that this finding of the referee was unsupported by the evidence. The books and accounts are not before us, upon which this finding was principally made. And we do not well see how the referee could have ascertained how the accounts between the parties stood without determining the amount of capital each had invested in the business when the last co-partnership was organized. And this is precisely what the referee did do, and what we think he was fully warranted in doing by the order of reference.
It would serve no useful purpose to examine in detail the testimony bearing upon the various exceptions taken to the report of the referee, and we do not propose doing so. It is insisted that the amount allowed the defendant for the use of the yard was not proper. But the testimony shows that the defendant furnished the firm the use of a cattle yard, which he had fitted up for that purpose, and that its use was reasonably worth what the referee allowed therefor. The plaintiff himself testified that the firm used this yard for keeping cattle over night, and no reason occurs to us why the firm should not pay what this use was reasonably worth. The defendant built a fence to divide this yard from the adjoining premises, put in a pump, and fitted up mangers, all at his own expense. This was done with the knowledge and consent of the plaintiff; and the referee very properly allowed this item among the credits of the defendant.
There is obviously a clerical mistake in. stating the aggregate amount of the recovery. But it is a mere error in footing up the items stated in the judgment.' The court would doubtless have corrected this error, had a correction been necessary, upon its attention being called to it. The court rendered judgment in favor of the defendant for the sum of $1,841.13, together with $101.25 costs of this suit, and $38.28 costs of the other suit. These items are stated in the judgment, for which a recovery was had, and the amount of these several items is all that could be collected on an execution. We cannot see that the error of the clerk could have prejudiced the plaintiff.
Upon the whole record we think the judgment of the circuit court is correct, and must be affirmed,
By the Court. — Judgment affirmed.