25 Ill. 522 | Ill. | 1861
It is insisted that this award was improperly admitted in evidence, because it is contended that it is uncertain whether the sum found to be due to appellee is owing by G. Farr or the firm. If we look alone to the award, without regard to the account to which it makes reference, the objection might be plausible, but when the paper referred to is examined, the question is relieved of all doubt. The account presented and acted upon by the arbitrators, is against the firm and in favor of appellee, and contains a charge for payments for the firm of the precise amount found by the arbitrators. They also allow one and a half per cent, on the next charge, for exchange on the sum paid in New York, reducing the charge one-half. They then reduce the item of charges for expenses one hundred and twenty-five dollars. On the next item,- they reduce the interest on a portion of the amount charged’, to six per cent, to the date of the award. They then allow the charge of fifteen per cent., as fixed by an agreement referred to in the award. By these items and others allowed after deducting credits, they find due to appellee the sum of $4,502.47, reducing his claim, as filed against the firm, $539.66. They also award that the uncollected assets of the firm shall be equally divided, as stipulated by the parties in an agreement referred to in the award.
When we see that.this account was claimed against the firm, and not against plaintiff in error, we can clearly see that the sum awarded was against the firm. Had the account been made out against the appellee alone, it would have been otherwise. But it is insisted that even granting that the amount was due from the firm, it is left in doubt what portion is due the appellee. There is no pretense that there were any partners in the firm but appellant and appellee. As we understand the rule, when a partnership has been shown to exist, unless rebutted, it is the: presumption that the partnership is equal, Story on Part. 30; 3 Kent Com. 28. The award also indicates that such was their interest, as the award divides the uncollected assets equally between the parties. And there is an entire absence of evidence rebutting the presumption. It then follows, that of the entire sum found to be due to appellee, appellant was liable to pay him one-half of the amount. This being the case, the court erred in the instructions given for appellant, and the jury in the sum found by their verdict.
The error was, however, corrected by the remittitur, and left the true amount which should have been found, and for which the judgment should have been rendered. But it was improperly rendered for the sum found by the jury, and not for the sum which remained after deducting the amount remitted. The order should have recited the finding of the jury, the amount remitted, and then proceeded to render judgment for the remainder.
But the sum being certain and fixed by the evidence, and of such a character as authorizes this court to render judgment, we shall reverse the judgment of the court below, and remand the cause, with directions to the court below to render a judgment for the sum of $2,375.05, being the amount less the interest, and interest from the 31st day of October, 1860, with costs. The appellee to pay the costs of this court.
Judgment reversed.
