67 Miss. 462 | Miss. | 1889
delivered the opinion of the court.
This is an appeal from the decree of the chancery court of Bolivar county, by which appellants are required to pay appellees about $14,575. Nearly thirty causes are assigned for error, but a full and thorough examination of the voluminous record makes it apparent that we need consider a few only, in order to reach a proper conclusion.
It is alleged by counsel for appellants that some of the appellants against whom the decree was rendered were never before the court.
The record shows that in October, 1888, without any motion or suggestion from any source, a summons was issued in this cause, directed to the sheriff of Bolivar county, commanding him to cite Mrs. Sallie Sugarman and several others, including by name Abe and Mamie Frank, and their guardian Godfrey Frank, to appear and show cause why this suit should not be revived against them. On this process there is no return by the sheriff, but one Frost, signing himself a deputy sheriff of Shelby county, Tennessee, endorses thereon a sworn statement that he had, on October 22, 1888, served the citation on Abe Frank and Mamie Frank, and on Godfrey Frank, their guardian. On February 4, 1889, more than three months afterwards, the deaths of Joseph Sugarman and Henry Frank, two of the original defendants, were suggested, and by order of the court the cause was revived against their adult heirs, who entered an appearance by their counsel, and a guardian ad litem was appointed then by the court for the two minors, Abe and Mamie Frank, the order of the court reciting that these two minors had already been lawfully summoned.
This error alone would require a reversal of the decree made by the court below; but, as we dissent in other vital particulars from the action complained of in that court, we think it proper to go further, and point out some other errors which contributed to the result reached.
Among other specific instructions given by the court to the clerk and master, in referring the matter to him for the purpose of stating an account between the parties, the clerk was directed to credit the complainants, as Lyman’s representatives, with salary due Lyman for twelve years at $900 per aunum, and the clerk accordingly reported defendants as due Lyman on this account $10,800, with $73.3 interest thereon..
It is well settled that no partner can charge his co-partners any sum for his services without an agreement made to that effect, and, further, that it is incumbent on the partner propounding such claim
The evidence of Shepherd, as to the payment of a salary of $75 per month to Lyman by the former firm of W. R. Shepherd & Co., is wholly insufficient to establish any agreement on the part of the members of the firm of J. W. Lyman & Co., to pay Lyman compensation for his services. But, on the other hand, it appears that the books of Lyman & Co., during the period of twelve years, when that firm was in business, contain no entries evidencing any purpose of Lyman to claim, or any hint of an agreement of his firm to pay him compensation, and these books were kept wholly under Lyman’s direction. The annual statements furnished the non-resident partners by Lyman contain no entry of such character, and none of the bookkeepers of the firm ever heard any such claim mentioned by Lyman.
We are clearly of the opinion, therefore, that the charging $10,800 against the appellants on account of salary supposed to be due Lyman was erroneous, as was the $713 interest thereon.
The allowance of $120 per annum for ten years, as money due Lyman on account of salary as postmaster, was likewise error. The proofs show that, during two years, Lyman credited himself
The direction of the court below to the clerk and master, and his action thereunder, in charging appellants with one-half of all the notes and accounts due Lyman & Co., amounting to $5945, and with $1545, interest thereon, in the face of the proofs — the only evidence taken on this point — made by Peake and- Allen, that the uncollected debts are worthless, appears to us to be incorrect • and the crediting Lyman’s representatives, the appellees, with large sums as interest, and the failure to charge them with any interest on Lyman’s debt of $6413, due the firm of J. W. Lyman & Co., is obviously inequitable' and erroneous.
We think it unnecessary to consider the many other causes of error assigned, as this opinion, on the several points already considered by us, will meet the requirements of the case in any further proceedings.
The decree of the chancery court is reversed, and the order appointing the guardian ad litem is vacated and set aside, and the cause is remanded.