6 W. Va. 153 | W. Va. | 1873
The bill in this case was filed in October, 1868, and alleges that a co-partnership was formed between the Plaintiff and the Defendants for the purpose of buying cattle in the counties of Greenbrier, Monroe, &c.; that by the terms of said contract the Defendant Baker was to furnish the money necessary to purchase said cattle, and to defray their expenses to market, and the Plaintiff and Defendant Edmiston were to purchase them and to drive them to Pennsylvania, and there deliver them over to said Baker, who was to sell them. The profits after paying the- purchase money and expenses were to be equally divided among the three. The bill then avers that said Baker failed to furnish the money to pay for the cattle as he agreed to do, so that Plaintiff was compelled
To this answer there was a general replication. At the November term, 1868, the case was referred to a commissioner, to take state and report an account of the partnership affairs, and the indebtedness of any of the partners to each other. The commissioner proceeded to take the account, after taking, first, the evidence of such witnesses as were produced, and the depositions of others, and filed the same in Court, but at what time the record does not disclose. The report itself bears date on the 13th of June, 1870. Report shows the sum or balance of $39.80, due from Baker to the Plaintiff, and the sum of $401.95, to Edmiston. This report is excepted to by Defendant, Balter, as re-opening a stated or settled account. No exception is made on the part of the Plaintiff.
At the October term, 1870, the report was re-committed, with instructions to strike out an item of $290, with which, in the opinion of the Court, Defendant, Baker, had been erroneously charged, and to take further evidence in regard thereto, or any other question. A supplemental report is made, complying with the order of the Court, but by the introduction of one or two other items, the amounts reported as due from Baker to his co-partners respectively, is, within a few cents, the same as mentioned in first report. To this report, Defendant excepts. Supplemental report bears date September 20th, 1871. On the 12th day of December, 1871, Edmiston files his answer, admitting that the bill correctly states the terms of the partnership, but that he does not know how the accounts will stand on a fair and final settlement; he believes, however, that Baker would be indebted to Plaintiff and himself, in a large amount of money, and prays for an account, &c. On the 24th day of April, 1872, a final decree is entered confirming sup
The 2nd error assigned is the following: In not dismissing the Plaintiff’s bill upon the proof, which clearly shows the fact that a final settlement of the matters set forth in the complaint, had been made and acquiesced in for nearly two years before suit was brought..
A proper determination of this exception will dispose of the merits of this appeal.
The object of the bill, and the state of the pleadings will be borne in mind. The bill seeks a settlement of partnership accounts, alleging that upon a rough settlement, there is due to the Plaintiff, from Defendant, Baker, about the sum of $1,400; and due to him from his other partner, Edmiston, about $75. Baker’s answer denies all indebtedness to the Plaintiff, and on reference of the case to a commissioner, the Plaintiff is bound to establish his claim by competent proof. The evidence was taken, and two reports were made, each giving him less than $40, as the amount due to him from defendant, Baker, a very small fraction of the amount claimed in his bill; but he takes no exception to either report, but
The first question then presented is this: was Andrew G. McNeel the agent of the Plaintiff and Edmiston, for the purpose of making a settlement with Baker of the partnership business?
The testimony of Andrew G. McNeel is taken three different- times touching the matters in controversy, from which it appears that he is the son of the Plaintiff, and aided in purchasing and bringing the cattle to marr-lcet, some of which he sold, and accounted, as he claims, for the money. In one deposition he says that he had no authority from his father and Edmiston to make a final settlement with Baker; that he went at their instance to Pennsylvania to get the proceeds of cattle sold, and yet unpaid by Baker; that he was directed to get the money from him — the balance on the cattle — and gave the receipt for .$9,293, filed with Baker’s answer — which amount he received. In another, deposition he says, he had no authority from McNeel and Edmiston to settle the accounts, only to receive and bring home any money Baker might pajr him for them.
Paul McNeel, the Plaintiff, gives his testimony, and
The other partner Edmiston is examined twice, but •only says that A. G. McNeel was the agent of all, and knew that he could not explain the settlement made with Baker.
On the other side, Baker introduces the testimony of James M. Phillips, Howard Baker, and himself, all of whom testify that A. G. McNeel stated or represented to them, that his father, the Plaintiff, was unable to go to Pennsylvania, but that he had come by his authority,, to make a settlement, and in his place; and that he had accounts, and memorandum books with him, copies of which had been previously furnished by mail to Baker. Their testimony as to A. G. McNeePs statement of his having come on with authority from his father to make a final settlement, is clear and explicit. A. G. McNeel, when asked if he had all the accounts of McNeel and Edmiston with him, &c., when going on to Pennsylvania, when the parties met, said the papers and accounts had been sent to Baker before he went, and were there when he got there.
In examining this evidence, a direct conflict appears between him and Aaron Baker, Howard Baker, and James M. Phillips, the latter testifying to their presence, when the alleged settlement vTas made, and to his statements and representations that he was authorized to make a final settlement by his father and Edmiston, while the materials, the papers and accounts, had been already forwarded, and were then in Baker’s possession. It is certainly singular that, while the issue in this case involved directly this question of A. G. McNeel’s agency,
Was there a settlement made? Upon'this question also, there is some conflict between A. G. McNeel and the witnesses Aaron Baker, Howard Baker, and James' M. Phillips. The first admits that there was _ some examination of papers and accounts between himself and Baker, though stating that it was mainly conducted by Baker and the witness Phillips, and a balance finally named and paid over to him of more than $9,000; but that he did not regard it as a final settlement, nor did Baker claim it as such, but said there might be mistakes, and if any he would be willing to make it all right. He says, however, that Baker furnished him at the time with two papers, one of which was a balance sheet, and the other an account of the purchase and sale of cattle. Copies of these papers are in the record.
On the other hand Defendant Baker says there was a
In Story’s Equity Pleadings, §798, ¡it is said, “a stated account properly exists only where accounts have been examined, and the balance admitted as the true balance betAAreen the parties, without having been paid. When the balance thus admitted is paid, the account is deemed a settled account. Each of these, and a fortiori a settled account, may be pleaded in bar to a bill for an account. But the defendant who pleads a stated account must shoAV that it was in writing, and the balance likewise in AYriting; or at least it must set forth what
"What now shall be done with the bill ? In the case of Weed vs. Smull, 7 Paige, Ch. Re., 573, it was held,, “upon a general bill for an account, if the defendant sets up a stated account in bar, the complainant will not be permitted to show mistakes or errors in such account; but he must amend his bill, as the settled account is pri-ma facie a bar to the suit, until specific errors therein are assigned.” This course was not taken in the case before us, but the Plaintiff was allowed to take an account of all matters in dispute, without' reference to the settlement. Still even in cases of stated or settled accounts between parties, a bill will be entertained to correct manifest errors, mistakes, or omissions specified, and clearly proved — but the enquiry does not seem to be enlarged beyond the items of error, or mistake, or omission, &c., indicated in the bill. In 7 John. Ch. R., 69, Nourse vs. Prime and others, it was held, “ when a party seeks to open a settled account by falsifying any particular item, he must in his bill state precisely the real objection; otherwise he.cannot make it at the hearing.” — See Willis vs. Jernegan, 2 Atkyns., 249, and Murray vs. Toland, 3 John., Ch. R., 569. In Vernon vs. Vawdry, 2 Atkyns., 119, it was said, “if there are only mistakes or omissions in a stated account the party objecting shall be allowed no more than to surcharge and falsify; otherwise in cases of fraud — so also Consequa vs. Fanning, 3 John.
The decree of the Circuit Court rendered on the 24th day of April, 1872, is'reversed, with costs to the Appellant, Aaron Baker, and this cause is remanded to the Court below, with leave to the Plaintiff to am%nd his bill, and the case is to be proceeded in, according to the principles herein settled.