47 Wis. 172 | Wis. | 1879
This action was brought for the dissolution of the copartnership of Henderson, Coon & Co., a firm doing bnsi
The referee found from the evidence produced before him, that there was in Henderson's hands, belonging to the firm of Henderson, Coon & Co., the sum of $2,268.37. With the exception of one item, which we think should be credited to Henderson, we are not prepared to disturb this statement. There is an item of $314.60 on page 161 of the ledger, according to exhibit 11, which is made up of charges against Henderson, and which, the referee says, does not appear from the books ever to have been deducted from his credits. But this is a mistake, as was clearly pointed out by the learned counsel for Henderson on the argument; for on the same page of the ledger it plainly appears that this sum of $314.50 was deducted from the aggregate credit of Henderson amounting to $2,047.74, leaving the “ balance due,” as there stated, of $1,733.74. This sum of $314.50, therefore, should be deducted from the amount found by the referee to be in Henderson's hands belonging to the firm.
It is barely possible that there is error in some of the other findings of the referee, which does injustice to Henderson; but we are unable to tell wherein it consists, if such there be. And this arises from the fact that the books of the firm, which were introduced on the trial, were kept in such a confused and unintelligible manner that it is impossible to get at the real state of the accounts. The business of the copartnership was entrusted entirely to the management and control of Henderson. He was paid a salary for keeping the books and transacting the business in a proper manner, and if he kept the books
There remains only one other matter in the report of the referee which we deem of sufficient importance to require notice. Henderson was charged with interest at the rate of seven per cent, upon the money in his hands belonging to the firm, for the time he held it. It is said that this was error; that in no event could he be charged with interest until a balance had been struck or an accounting had. In many cases this would undoubtedly be so, as this court decided in Marsh v. Fraser, 37 Wis., 149, and Fates v. Shepardson, 39 Wis., 173. But the reason of the rule fails here, because Henderson kept the account books, and knew, or had the means of knowing, the precise amount which he held in his hands belonging to the firm. He even professed to make a full statement of the property, profits, losses and condition of the firm at the closing of the business in the fall of 1874, which he gave to his copartners, but which statement was found not to be correct. Under these circumstances we therefore think it was not necessary that any formal balance should be struck in order that he might ascertain just what he had belonging to his co-partners. He could have ascertained it, and paid over the amount, had he been disposed to be just.
In a case where one partner had withdrawn funds from the partnership contrary to the articles of copartnership, and employed them in trade, Chancellor Kent required him to account not merely for interest, but for the profits of that trade. Stoughton v. Lynch, 1 Johns. Ch., 467. This case comes fully within the spirit and reason of that decision. We
Ve d.o not deem it necessary to make any further comments on the case.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment on the report of the referee in accordance with the views expressed in this opinion.