3 Del. Ch. 307 | New York Court of Chancery | 1869
To the relief prayed for in this cause, there is a preliminary objection which must be first noticed. It is the want of sufficient parties to the bill. Bronson and Harvey, who, according to the record, aré parties interested under the judgment, are not parties to this proceeding. Clearly no injunction could be decreed as against them, i. e., to restrain the collection of the judgment by them, their attorneys or agents, unless they were made parties here. They must be heard on the question, whether this judgment has been satisfied, before their legal rights can be interfered with. In this suit, as it now stands, an injunction could be decreed, only against Wilson. But against him alone an injunction, as a means of staying the collection of the judgment, is wholly ineffectual and nugatory. The judgment might still be collected by Bronson, or by Harvey. Then, what results ? Thi¿ Court ought not to interfere at all, except in a mode which shall be effectual for the purpose of its decree, that is, to restrain the collection of the judgment by any person ; and, therefore, supposing the -proof,presently to be examined, should satisfy the Court that this is a case for its interference, its duty would be to order the cause to stand over, with leave to make Bronson and Harvey parties to it. I shall, therefore, proceed to examine the ground relied upon to support the prayer for an injunction, not with a view to decree for it at present, but in order to see whether
The alleged ground of relief against the judgment is, that the original judgment was recovered in New York in the absence of Davidson, he being a resident of Delaware, and in his utter ignorance of that action, or of the transactions on which it was founded ; that after the service of summons upon him in the action in Delaware, upon examining the record of the New York judgment, supposing it to have been unpaid, and suspecting no wrong, he, under the advice of his counsel, confessed this judgment for $300.00 : — that since such confession he has discovered that the judgment in New York had been paid by Wilson, though not satisfied of record, and that the proceeding here was set on foot and presented against him by Wilson alone, and for his benefit, without the knowledge or authority of Bronson, the original plaintiff, or of Harvey, for whose use it stood indorsed.
It is upon this question of fact that the present branch of the case rests, viz'.: had the New York judgment been paid by Wilson, and was the action upon it' in Delaware prosecuted for his benefit ? The defendant flatly denies this ; first, in his answer to the original bill, and again, and more explicitly, in his answer to the supplemental bill filed April 6, 1866. He states that he never had paid the judgment in New York, that the same was purchased from Bronson, the orginal plaintiff, by Hugh Clark, of Philadelphia, and by his direction marked to the use of Harvey ; that Clark purchased the judgment with his own money, without (Wilson’s) privity or knowledge; that the purchase was made during Wilson’s absence from Philadelphia, and that he knew nothing of it until after his return, when Clark called on him for information as to Davidson’s place of residence ; that the claim was placed by Clark in the hands of his Attorney in Philadelphia, Horn R. Kneass, Esq., who sent it for collection to Hon.
This denial by the defendant, of the alleged payment of this judgment, and of its being prosecuted for his use, being directly responsive to the bill; makes it incumbent upon the complainant to prove his allegation by testimony of two witnesses, or, with one witness with corroborating circumstances. In this, the complainant’s case for an injunction fails. There is no direct testimony, whatever, to the question, whether this judgment has been paid by Wilson. The evidence relied upon to prove that the judgment had been paid by Wilson, and was prosecuted for his use, is wholly circumstantial, and rests upon these facts, which are proved. An intimacy subsisted between Clark, who was an Alderman in Philadelphia, and Wilson, who resided in the same city. They had divers business transactions together, Clark was Wilson’s real estate agent, collected his rents, and, in one instance, held, in his own name, some real estate, which was sold by the sheriff, under the defendant’s judgment, as Wilson’s, and was recovered in an ejectment against Clark, who then paid a sum of money toward satisfaction of the judgmental ordertoobtainareleaseof thetitle. Thetestimony of Garwin, the tenant, to some declarations made by Clark, proves that this property, though held by Clark, belonged to Wilson. Connected with these relations between Clark and Wilson, it is proved that, although Clark died in June, 1862, a month after the suit in Delaware was brought, his executors knew nothing of this claim, and had no agency in its prosecutions. It came to the hands of Judge Wales, then at the bar, from .Horn R.
He never heard from Clark or Clark’s executors in relation to the claim, nor from Bronson or Harvey. For two years he received instructions from no one, and one suit brought by him had been nonprossed for want of security for costs : then Wilson called, gave him a retainer to renew the suit, and thenceforth, as the Judge states, the suit was prosecuted “at his (Wilson’s) “instance, and for his benefit.” That is the strongest view of the complainant’s case on this point which the testimony presents. Does it. then, overcome the defendant’s positive denial that he had paid this judgment, and was pressing it in order to collect the money for his one use ? On much frequent reflection, I think not. The circumstances are suspicious, but they are too inconclusive to outweigh the positive denial of the answer. That feature of the case which excites suspicion, viz: Wilson’s active agency can be accounted for by an interest on his part to release himself by getting the claim collected out of Davidson. This and all the circumstances relied on can be reconciled with the truth of the answer. It is a rule of law, as well of charity, that where the facts proved may be harmonized with the answer, the court shall rather do that, than impute perjury to the defendant.
There is another consideration on this point, of much force : The Court ought nót to be left to rest a decree which is to restrain the legal rights of a party, upon evidence merely circumstantial, so long as there are sources of direct testimony to which the complainant might have resorted, and has omitted to do so. Yet, Bronson, the original plaintiff in the New York judgment, is living, and his place of residence,West Chester county, New York, is disclosed by the answer in direct response to an interrogatory of the bill. Harvey, for whose use the judgment stands of record, resides in Philadelphia.
We next considerthe prayerfor a partnership account. The subject-matters sought to be embraced within such an account are three.
First. The sums contributed by the respective partners to the capital employed. Davidson alleges that, although they were to contribute equally of labor and capital, Wilson neither gave labor nor capital, while he (Davidson) contributed largely of both In fact the original bill alleges that Davidson advanced all the money used in the work over and above the income received from it, such excess amounting to over $3000.00, in cash, expended by him,exclusive of claims against them, unliquidated. He claims that Wilson owes him, on the score of capital advanced, upwards of $12,000.00 or $14,000.00. The annexed bill is more specific as to Davidson’s advances. It states that he advanced $900.00 to commence the work in 1847, $300.00 in January, 1848, and $500.00 in 1849, making in all $1700.00.
The jar<?%rtlsubject-matters of such an account,if taken, and which would be essential in order to ascertain the exact rights of the parties, would be the sums of money received by these partners, respectively,upon the monthly estimates and their disbursements ; how much money each received, how they applied it, and how the balance would stand between them with respect to these receipts and disbursements. Davidson alleges, on information, that Wilson drew $28,000.00, upon the monthly estimates, $520.00 from the Peekskill Bank, and $4950.00 from Wilson and Brown, of New York. An account for these sums is insisted on.
This prayer for an account, with respect to the first two matters referred to, viz: the advances of capital and the receipts and disbursements by the respective parties, the Court is obliged to refuse, upon a ground common to both ; that is, that the partnership books, which alone can afford evidence for stating such an account, are lost. It is presumable that we have, on this record, all the evidence which, apart from the partnership books, is available. The entire knowledge of the parties themselves is set forth in the bill and answers,and all witnesses having any acquaintance with these transactions have been examined. The industry shown in procuring testimony, must be supposed to have reached every available resource. But it would be impossible upon the bill, answers and testimony, to state any account. The bill and answers are flatly contradictory, and, as between these, the weight of the testimony supports the answers.
Consider them first as to the advances of capital, which Davidson alleges, he alone made in sums amounting to $1800.00, Wilson paying nothing. The answers deny that Davidson put in altogether exceeding $520.00 to $530.00. Devlin, who became a partner and the bookkeeper in January, 1849, and who, as he says, then examined the books and made a balance sheet, swears that up to that time, as shewn by the books, Davidson had put in not more than
Next we inquire, how stands the evidence on the other matter claimed to be the subject for an account, viz: the receipts and disbursements of the monthly estimates ? The bill alleges that Wilson drew $2,800.00 from the railroad company, beside $320.00 from the Peekskill bank, and $49.50 fromNelson and Brown, in New York. The answer disclaims any knowledge as to the $49.50 ; admits he drew from the Peekskill bank between $200.00 and $300.00, on
Upon the question, then, of ordering an account, I am brought to this conclusion. That all the evidence, short of the last partnership books, which can throw any light upon the subject-matters of such an account, is already before me ; that it is too indefinite and uncertain for the statement of an account; moreover, that so far as it goes it is against the complainant, and supports no claim to an account, at least, on his part. The result of any attempt to state an account without the books must be wholly unsafe as a basis of a decree for the payment of a balance between the parties. The Court will never undertake to adjust the rights of parties without satisfactory means of ascertaining what their rights are, and if, as in this case, the account cannot be safely stated, and the true balance between these parties ascertained, I can proceed no further. The loss of the books is the misfortune of the parties, and they must bear its consequences. Millar vs. Craig, 6 Beavan, 433. It will be observed that I lay no stress on the charge made by the answer, that those books were last in the possession of Davidson. It is not necessary to take up that question.
The result which, in the investigation we have reached, is, that being unable to ascertain the state of the account between these parties at the termination of their work, we can charge neither, and must treat the case as if the partnership account was, at that time, balanced between them.
Then we are brought to the one remaining claim of Davidson, viz : that Wilson shall contribute for the payments which he (Davidson) claims to have made since the close of the work, towards the then outstanding partnership liabilities, — payments made with his own moneyafter
In the answer, the defendant claims that, upon a just settlement between this complainant and himself, he would