62 Pa. 73 | Pa. | 1869
The opinion of the court was delivered,
It is not necessary to consider any of the assignments of error, except the 5th and 7th. The court were clearly right in decreeing the account; and the master adopted and applied correct principles on. all questions raised before him, except as to interest and costs. In regard to his conclusions of fact from the evidence, there is no such palpable error as, according to the well-established practice in chancery, would have justified the court in correcting his report.
The 5th assignment of error is “in charging John Gyger interest prior to the settlement of accounts between the parties.” Mr. Bindley remarks that the principles upon which, in taking partnership accounts, interest is allowed or disallowed, do hot appear to be well settled: 1 Bindley on Partnership 649. In some cases it has been held that the period of the dissolution of a partnership is the proper time to make a rest for this purpose: Stoughton v. Lynch, 2 Johns. Ch. R. 209; Hollister v. Barkley, 11 N. H. 501. Judge Story has laid down a different rule. “Interest,” he says, “is not allowed upon partnership accounts generally, until after a balance is struck on a settlement between the partners, unless the parties have otherwise agreed or acted in their partnership concerns:” Dexter v. Arnold, 3 Mason 289. Vice-Chancellor Sandford, of New York, in Beacham v. Eckford, 2 Sandf. Ch. R. 116, after a review of all the authorities, came to the conclusion that there is no general rule established, but that the allowance or refusal of interest depends upon the circumstances of each particular case. This seems much the safest principle to adopt in view of the confidential relation of the parties, and the variety and complication of such accounts. No unbending rule could be laid down which would not, in particular instances, work great injustice.
There are equities in this case which we think ought to weigh in favor of the accountant. Mr. Gyger undertook to liquidate the business of a banking firm with a large amount of outstanding and doubtful debts due to it, and a correspondingly large amount of liabilities. To do so without loss, it was necessary that he should continue to receive deposits and issue certificates of loan, by which he was enabled, in effect, to borrow at a low rate of interest, in order to meet the liabilities as they fell due. For this purpose he was also at first compelled to make advances. Thus he gained time for the collection and conversion of the assets,
The 7th error assigned is, that the court below erred in charging all the costs upon John Gyger. In equity costs do not always follow a decree against a party. They rest on the sound discretion of the court, and are to be awarded or refused, according to the justice of each particular case: 3 Daniell’s Ch. Pr. 2. It has been decided that wherever an account is intricate or doubtful, there should be no costs, Pitt v. Page, 1 Bro. P. C. 1, and this is especially applicable to partnership accounts: Collyer on Partn.. 339. In such cases the costs are usually divided, or what is practically the same thing, are taxed on the partnership effects: Hutcheson v. Smith, 5 Irish Eq. 117; Jones v. Morhead, 3 B. Monroe 385; Taylor v. Cawthorne, 2 Dev. Eq. 221. There were conflicting claims in this case on both sides, and each party has
Decree reversed, and record remitted to the court below, that the decree may be there modified according to this opinion.