27 Miss. 106 | Miss. | 1854
delivered the opinion of the court.
This was a bill filed in the superior court of chancery, by the administrator of a deceased partner against the administrators of the surviving partner for an account touching as well the copartnership transactions, as the profits alleged to have been made by the survivor, who continued in the use and management of the joint property for a certain period of time after the dissolution of the concern.
The facts, so far as it is necessary to state them, are briefly as follows. C. C. Mayson, whose representatives are sued, and James F. Beazley, the complainant’s intestate, about the first of May, 1835, formed a copartnership to purchase a steam saw and grist-mill, and certain other property connected therewith in the vicinity of Jackson. About the 28th of September following, Beazley died. Mayson continued to carry on the business and manage the property till about the month of February, 1837, when the property was sold to Richards & Washington for the sum of $25,000, payable in six, twelve, eighteen, and twenty-four months from date.
The bill alleges that during the period of Mayson’s management of the property, large profits were made, for which he
The case having been referred to a master to take an account of the copartnership transactions, of the profits made by Mayson after the dissolution of the copartnership by the death of Beazley, and of the amount of the sale to Richards and Washington, the master reported the share of each partner to be $11,803.31, for which sum the chancellor rendered a decree in favor of the complainant, directing first a sale of the property under the mortgage given by Richards and Washington to secure the purchase-money; and that for any balance after such sale, execution might issue against Mayson’s estate.
The master in taking the account, charges Mayson with what he says were the gross receipts on account of the mills, from the commencement of the copartnership to the date of the sale in February, 1837, being the sum of $44,960, and making an average of eighty dollars per day.
To this charge the counsel for the appellant filed an exception, on the ground that the estimate was not sustained by either the evidence regularly taken in the cause, or by that introduced before the master. This exception, as well as all the others taken to the report, was disallowed by the master, and his action sustained by the chancellor.
The exceptions may, in general terms, be said to relate to three matters, to wit: —
First, The charge of $80 per day as the general average product of the mills.
Secondly, Not giving Mayson the credits to which it is alleged he was entitled for debts which he paid against the co-partnership, and for certain property which it is said he put into the concern; and,
Thirdly, Not giving him credit for the expenses necessarily incurred in carrying on the business.
The first exception, the charge of $80 per day, may be said' to depend entirely for its validity upon the weight of evidence.. Many of the witnesses speak of the mill cutting from three to. five thousand feet of lumber per day, and that the lumber was usually sold at $40 per thousand feet. This evidence, if be
Supposing, then, the books to be competent evidence, and this abstract to fiave established their contents, the controversy is at once settled as to this exception, the evidence showing that the mill did not average exceeding sixty dollars’ worth of lumber per day, during the twenty-one months it was kept in operation. It is admitted that the books were admissible in evidence for the purpose of proving the copartnership transactions, but not for the purpose of proving the transactions of Mayson after Beazley’s death, as a party cannot make evidence for himself.
It is absurd to suppose that so extensive a business, consisting of a variety of small transactions, could be conducted without books. It is equally absurd to suppose that a man in such a multiplicity of transactions, could produce direct or positive testimony to establish the correctness of every entry made in the1 course of business. The question under such circumstances, is not whether the books are evidence, but whether they have been sufficiently proved to admit them as evidence.
It requires no argument to show that most of the witnesses, whose statements differ from this testimony, had no means of acquiring accurate information as to the quantity of lumber sawed, for the period of time comprehended by the investigation. The mill may have been capable of accomplishing what they said it did. It may have occasionally come up to their estimates; but what it was capable of doing, and what it may have occasionally done, are very different propositions from what was actually done for twenty-one months in succession.
Looking through the whole evidence, we are of opinion that the exception was well taken, and ought to have been sustained.
In regard to the other exceptions, they may be disposed of in general terms. Mayson was unquestionably entitled to credit for all debts which he paid, contracted by the copartnership. All debts contracted in the name of the firm must be regarded, unless the contrary shall be made to appear, as copartnership debts. The fact that they matured after the death of Beazley, and Mayson having possession of the evidences of debt, will be
Pie is entitled to credit for all expenses incurred in conducting the business, and if the boiler, for the costs and expenses of which he claims a credit, were necessary to continue the machinery in successful operation, he is entitled to credit for it as part of the regular expenses. He is entitled under any circumstances to a credit to the extent that it enhanced the value of the property in the sale to Richards and Washington.
As to the credit claimed by the appellant for the insolvent and uncollected debts, this question may be disposed of by settling the principle upon which Mayson would be held accountable for the profits made after the death of his partner.
By the death of Beazley the partnership was dissolved. The legal title to the property survived to Mayson only for the purpose of enabling him to pay the copartnership debts. As to the beneficial interest in the property, Mayson and Beazley’s representative were tenants in common. It was the right of the representative of the deceased partner to call for an account at any time, and Mayson’s duty to give it when demanded. Till the account was given, or the business closed by a sale of the property, a court of equity will, for certain purposes, regard the partnership as still in existence, and will require the survivor to account for whatever profits he may have made by the use of the property or the employment of the joint capital. Or, to state the proposition in a few words, if the survivor has made profits he must account for them upon the terms regulating the copartnership; if he has made nothing by continuing the business, he is accountable only as a tenant in common.
This brings us to the consideration of the question at issue, to wit: What-shall be regarded as profits, so far as the rights of the administrator of the deceased partner may be considered? This question is easily answered. The complainant can only ask to share equally the profits which Mayson realized, and hence whatever was not a profit in the hands of Mayson,
Many of these debts may ultimately be collected; if so, they will then be profits, to a moiety of which the complainant will be entitled. The question now to be determined is, whether they shall be treated as money in taking the account, and the complainant be decreed his share to be paid in money, and Mayson’s estate to take his share in these debts. Such a course of proceeding would be a gross departure from the rule under which the complainant is allowed to assert his claim, that equality is equity. By interposing his claim for the profits, he tacitly assents to Mayson’s contracts and manner of transacting the business; and he can on,ly ask to come in upon the terms of equality with Mayson as to the benefits which the latter would reap from his acts.
The last point which we will notice is, the alleged error in the final decree awarding execution against Mayson’s estate.
It will be borne in mind, that whatever, profits were made from the use of the property, were consumed in paying the co-partnership debts. There was, therefore, nothing to divide between the copartners but the money arising from the sale to Richards & Washington. In making this sale May-son took what was at the time considered by all parties as good security, and he ought not, therefore, to be held personally liable for any loss occasioned by the subsequent insolvency of the securities, especially under the circumstances of this case, where the complainant prevented the prosecution of suits at law and the recovery of judgments.
The facts are too numerous and complicated to be noticed in detail. We have, therefore, noticed only such as relate to the main points in controversy. The same may be said as to the various questions of law as applicable to the facts. These several matters can be more clearly presented in the decree which will be entered in this court, as they are only important in the settlement of this controversy.
Decree reversed, and cause remanded.