53 Md. 225 | Md. | 1880
delivered the opinion of the Court.
The controversy in this cause which at first assumed a broader scope has been narrowed down to the question whether the appellant is entitled to recover from the appellee the sum of $852.16, which he alleges was paid under a mistake.
It appears these parties had for some years been partners in the wooden-ware business. Early in 1872 a dissolution of the partnership was contemplated and steps to that end were taken which culminated in an agreement signed by both parties and dated the 17th of February, 1872. By this it was agreed that Hunt should be the purchaser and Stuart the seller ; the stock of goods was to be taken and also the debts due the firm; the liabilities and bad debts were to be deducted and the individual accounts of the partners were to be settled ; the partner buying was to pay the outgoing partner what was due him, and the outgoing partner retained a half interest in the bad.debts; Hunt, the buying partner, was to have ten per cent, on the debts due to tbe firm to defray the costs and risks incident to their collection, which was to be taken into the calculation in ascertaining the condition of the individual accounts. Two accountants, one selected by each party, were then called in, who examined the books of the firm.
First. There has been great delay in asserting the claim. In all cases of mistake Courts of equity require the injured party to take steps to obtain relief promptly, and, if he has been guilty of ladies they will not listen to his complaint. Beard vs. Hubble, 9 Gill, 420. The complainant knew of the alleged mistake shortly after the money was paid, for as early as the lltli of March, 1872, Barker, his accountant when the settlement took place, at his request addressed a letter to Stuart, in which he says Hunt had called his attention to an error made in the settlement by which he (Stuart) had been overpaid $977.70, and he then states how the mistake occurred. Hunt testifies that the day after this letter was written, Stuart called on him in response thereto, and promised that if there was any error he would correct it, but Stuart in his testimony denies that he ever made any such promise. After this nothing whatever was done until Hunt filed the
Secondly. The mistake must he made out by clear and satisfactory proof. The amount must he certain, and the error made under such circumstances and he of such a character, as to make it just and equitable that it should he rectified. The proof in these respects is far from satisfactory. While it may he true that from such hooks of the firm as are now before us, and with such means as we now have, an account under the agreement of Eehruary, 1872, could not be stated to correspond with the result reached by the examiners at that time, still the error is not so apparent that we can safely say it amounts to* the
Thirdly. Again if the settlement is to he opened for the purpose of correcting this alleged error, then justice requires that in this case it should he opened for all purposes, and an accounting between the parties for all the business and affairs of the partnership be had. The bill as well as the replication prays for an account, and under a decree to account each party becomes an actor, and either may recover against the other according to the result of the accounting. But it is evident the accounts could not now be stated so as to do justice to Stuart. The books of the firm since its dissolution in 1872 have been in the possession or under the control of Hunt. Many of them absolutely essential to a clear ascertainment of the affairs of the firm have been lost or destroyed. The sales book, the day book, the cash book, and the check and note books are missing, and only the journal and ledger preserved. In this state of case no reliable and satisfactory result could be reached under a decree to account.
These considerations, without adverting to others, are quite sufficient to sustain the decree of the Circuit Court, which denies relief and dismisses the bill.
Decree affirmed. .