McMullen v. Lockwood, 4 Del. Ch. 568

McMullen v. Lockwood

4 Del. Ch. 568 | New York Court of Chancery | 1872

The Chancellor :—

It is agreed in this case that the bond for $3700 given by the complainant on the 12th October 1870 was to be held by the defendant only as a security for such sum as might be found to be due him upon a settlement of their mutual indebtedness thereafter to be made :—further that such settlement was made in February 1871, the result of which shewed a balance then due to the defendant of $111.09. It is also agreed that after the settlement the complainant paid for the defendant $221.69 from which deducting $54.60 for some costs which defendant had paid not included in the settlement, there remained $172.90, as a credit to the balance, whatever that might be, due at the settlement. According to the defendant’s case, crediting the $172.90—against the $1117.09 there would remain due him $944.19. This is his claim. The error in the settlement alleged by the cofnplainant, if corrected, would reduce the balance as then ascertained from $1117.09 to $221.69, and, crediting against this the $172.90 before mentioned, there would remain only $48.79 due, which he has since paid to the Sheriff. The complainant therefore • claims to owe nothing.' With respect to the alleged error, it is one manifest upon the face of the statement shewn on the complainant’s book, pp. 140, 141, and if the settlement is proved to have been made upon the basis of that statement, the complainant’s case is made *571out. I am clearly of that opinion upon the evidence in the cause. Joseph L. Beckett went into the room where the settlemment was made and saw the parties engaged in it. They had before them open, the account book in question, together with sundry papers and vouchers. What was the business they were engaged in admits of no doubt; for Mr. Lockwood said to the witness, “won’t “ you let us have the office; we want to settle,” or words to that effect. Nor can there be any doubt that the book which the witness saw open before them was the account book containing the statement in question ; for the witness, who was a partner in business of the complainant, was very familiar with the book and is positive as to its identity. He did not see at what page the book was open ; but his testimony, given from his knowledge of the accounts kept in that book, satisfies me that there was nothing in the book except the statement on pp. 140, 141, which these parties could have been using for the purpose of a settlement. What Mr. Beckett saw at the time of the settlement, corroborated by the internal evidence of the book, arising out of the correspondence between the balance shewn by the statement and that now claimed by the defendant, would, were there nothing else, go very far inferentially to connect the settlement with the statement. But the evidence is carried beyond inference and becomes direct proof by the statement of the witness that, afterward while at the defendant’s shop, acting somewhat as a mediator between the parties, the latter took out of his coat-pocket a copy of this statement, as it appears on pp. 140, 141, of the account book, and asked the witness if that “was not in McMullin’s hand-writing, and if the figures “were not his,” which the witness, admitting to be true, the defendant then asked : “ Why does McMullin say that “ he does not owe me ?” The witness further states that the defendant, on showing him this paper, said it “was a “ copy of the account by which he and McMullin settled,” *572&c., and the witness looked at the paper, and having been as he elsewhere states, familiar with this statement, says that the paper in the defendant’s possession was a copy of the statement. Mr. Beckett stands wholly unimpeached as a witness ; his testimony is not contradicted either directly or by inconsistency with any of the circumstances proved. The point of contradiction mainly relied on is what Mr. Clements states of a conversation between the parties in which something was said about the figuring done on a slate. His statement is : “I understood McMul- “ lin to say in the said conversation that the figuring of “ the said settlement was on asíate.” This is not inconsistent with the fact that the settlement was by the statement on the book. Doubtless there was, as usual, some figuring not ° carried into the formal statement and for which a slate, would be convenient. Besides this there was some attempt to impeach the statement as appearing on its face to have been altered. This hypothesis is, however, inadmissible, because it is inconsistent with the case made by the answer: for this argument must assume that the statement was the basis of the settlement, but afterwards so altered as falsely to shew on its face the error alleged in the bill; whereas the case made by the answer is that the statement was wholly made up after the settlement. I have, however, considered whether, supposing the statement to have been the basis of settlement, the apparent alterations in it are such as to discredit the alleged error. To have this effect there must appear to be some connection between the alterations and the mistake in the footing up. But there is no such connection whatever.' The alterations are in parts.of the statement where the error does not arise ; and besides they are alterations evidently in favor of the defendant. On the whole the fact that such alterations do appear, weakens the case made in the answer, that is, that the statement was wholly fabricated subsequently to the settlement; for, had the complainant *573attempted a statement wholly false and fraudulent, it would no doubt have been a clean one.

The conclusion is that the settlement was made upon the statement in the account book of complainant, pp. 140, 141 ;—and that there was an error in that statement the correction of which would have reduced the balance due Lockwood at that time from $1117.09 to $221.69 j that this became afterwards subject to a credit of $172.90, the balance of the $227.50 paid for the defendant after deducting $54.60 for the costs before referred to. That left $48.79 due the defendant, which with the costs having since been paid to the Sheriff, there remains nothing due on the judgment and the complainant is entitled to relief against it. The decree will therefore be for a perpetual injunction with costs.