| Ill. | Jan 15, 1866
delivered the opinion of the Court:
This record presents the question whether the account as stated between the parties is, correct, and whether the master should have heard other and further evidence than that in the record at the time the reference was made. On examining the evidence in the case, we are satisfied that the master has, in stating the account, inadvertently allowed items against plaintiff in error a second time. So far as we can see, the two charges against plaintiff in error for ninety-five dollars paid to Francis Day are one and the same transaction. His deposition was twice taken. In the first, he says, that about the 28th of February, 1856, he sold to plaintiff in error seven head of cattle, and he then said he must see Robbins about getting the money and said that he and defendant in error were buying cattle in partnership. He, however, in this deposition, states no price at which the cattle were sold. In his second deposition he states that, he thinks, in February, 1856, he sold plaintiff in error seven head of cattle for ninety-five dollars, and he identifies an order drawn by plaintiff in error on defendant in error for that sum and dated on the 29th of February, 1856, and an order appears in the record, dated on the 28tli of February, 1856, for the same amount, with a memorandum of several cattle, seven in all, appearing to have been indorsed upon it. These several items of evidence would seem to prove but one transaction, and the master we think erred in treating it as two.
Inasmuch as the case will have to be again referred to a master, and as the proof may then be altogether changed or greatly modified, we deem it unnecessary to examine whether the various items of the account to which objections are interposed are well taken. When the master shall have the whole case before him he will no doubt be enabled to arrive at just conclusions. We find, by looking into the evidence contained in the record, that it is true, as he reports to the court below, that it is on that evidence exceedingly difficult to arrive at satisfactory conclusions. Plaintiff in error having received the partnership property, and being by the terms of the partnership intrusted with its custody, management and disposal, when shown that he received it, he must be charged with its value, and, to discharge himself, he must account for its disposition, and what he has done with the" proceeds. Any other mode of disposing of the controversey would impose an undue burden upon defendant in error, and would be to reverse the rules governing the statement of accounts. This rule prevails in all trials involving the adjustment of accounts, whether for the sale of goods and chattels, or otherwise. The plaintiff only has to show that the defendant purchased or received the property and its value, and the presumption then arises that he is liable, and he to discharge himself must show payment, set-off or some other legal defense.
Having entered into the business of raising, buying and selling stock on the farm upon which he resided, and having made no provision in the partnership articles to commingle his own stock with that of the firm, we can hardly presume that he did, and, if he placed his own stock on the farm, to overcome the presumption that it became partnership property would require the clearest and most satisfactory proof. Until such proof should be adduced, the presumption would he that when he placed it there it was to and did become partnership property, for the value of which the firm would be liable to account to him, but the profit would inure to the firm, and if loss- occurred it would have to be borne by the firm.
When the partnership terminated, plaintiff in error, if he had regarded the duties and obligations of a partner, instead of appropriating the property to his own use, would have made some disposition of it for the benefit of the members of the firm, or would, at least, have taken the necessary steps for a settlement. The presumption would be, until rebutted, that the property at the termination of the partnership belonged to the firm, and, if so, and plaintiff has appropriated it to his own use, he must account for it on the settlement of the affairs of the partnership. It was then in his power to have had clear and satisfactory evidence of the articles and their value on hand at the time the partnership terminated. It would have been attended with but little difficulty, loss of time, or trouble, to have called upon neighbors, to have made an inventory and fixed the value; but, having failed to do so, and defendant in error not having the power to do so, he must establish his claims in the best mode he can, and if, in doing so, he has to prove facts, from which presumptions have to he indulged, which plaintiff in error may think overcharges him, he will have no right to complain if he has failed to provide and preserve the evidence which it was his duty to have obtained.
It is urged that the opinion of the court, when the case was previously before it, prevented plaintiff in error from introducing evidence before the master, when he last stated the account. The opinion does require the account to be stated on the evidence then taken and appearing in the record, and it was for the reason that the parties had taken evidence that was proper for that purpose. The court below had found that there had been a partnership; that there had been no accounting between the partners, and decreed that they should account; and referred it to the master to state the account. He did so, and, so far as we can see, plaintiff in error did not offer to produce any evidence which he now proposes to produce. Under such circumstances he has no right to claim now to come in and ask a reversal of the decree, that he may introduce- additional evidence. Had he, before the master, Campbell, offered such proof, and it had been rejected, and the chancellor had refused to refer it back, that he might introduce his evidence before the master, it would have been otherwise.
But inasmuch as the decree of the court below will be reversed on other grounds, and the case again referred to a master to state the account, we have concluded to modify the former order, so as to permit both parties to be heard, with any legitimate proof which they may produce on the hearing before the master. The decree of the court below is reversed, and the cause is remanded with directions to again refer it to a master to state the partnership accounts and not the private accounts between the parties.
Decree reversed.