Morgan v. Adams
37 Vt. 233
Vt.
1864
Check Treatment
Peck, J.

The question presented is whether the county court erred in rendering judgment for the defendant on the report of the auditor. If thе defendant had a right to rely on the facts reported, after having submitted to judgment to account, there can be no dоubt but that the defendant is entitled to judgment on the report, unless the facts reported as to item No. 14 in the plaintiff’s accоunt entitle the plaintiff to recover for that item. As to items in the plaintiff’s account Nos, 1, 2, 3, 4, 5, 6, 7, 9, 11, 13, 15, 23, 24, 25 and 26, the auditor finds there never was any right ‍​‌‌‌​​​‌‌​‌​‌‌​‌‌​​​‌​‌‌​‌​‌‌​‌​​​​​‌​​‌‌​​​‌‌​‌‍to make the charge ; and as to items 21 and 22, he finds that they were concerning matters disconnected with the partnership deal. Thus far no question is raised by the counsel for the plaintiff. Items No. 8, 10, 12, 16, 17, 18,19 and 20, it appears from the report, were settled and adjusted, and the balances paid after the partnership closed, in a general settlement of all unsettled mаtters between the parties, except a $400 item consisting of money loaned to Martin ; and that on that occasiоn the parties executed receipts to each other in full of all demands, “ except four hundred dollars Martin money,” so called in the receipts.

The only question made by the plaintiff’s counsel upon the merits, aside from the question of the admissibility of the defence after a judgment to account, is upon item ‍​‌‌‌​​​‌‌​‌​‌‌​‌‌​​​‌​‌‌​‌​‌‌​‌​​​​​‌​​‌‌​​​‌‌​‌‍Nо. 14, being $45, for half the loss on a lot of cattle bought and sold. These cattle, it appears, werg purchased by the plaintiff during the existence of the co-part*237üership, with money raised by the plaintiff on a note signed by him in the name of the co-рartnership. At the time the plaintiff purchased these cattle, the defendant had expressed to him a desire or wish that hе would not buy any more cattle as the market then was. The -auditor finds that the defendant never fully recognized this as a partnership transaction. Assuming that the plaintiff, had he insisted on it, had a right to treat this as a co-partnership transaction, yet ‍​‌‌‌​​​‌‌​‌​‌‌​‌‌​​​‌​‌‌​‌​‌‌​‌​​​​​‌​​‌‌​​​‌‌​‌‍it was сompetent for the parties, in a general settlement, by agreement to exclude it from the company dealings, аnd for the plaintiff to assume it as an individual transaction of his own. It appears that at the time of this general settlement the plaintiff claimed this item, and the defendant objected to it; whereupon “the plaintiff said that he could stand it all himself, and it was then understood by both parties that the plaintiff abandoned his claim ” for this item.

It is further found by the auditor that in that settlement it was understood by both parties that all matters of difference were then adjusted between them, so that neither had any claim upоn the other unless something was due on account of money they had loaned to Martin. It is insisted on the part of the plaintiff that there was no consideration for ‍​‌‌‌​​​‌‌​‌​‌‌​‌‌​​​‌​‌‌​‌​‌‌​‌​​​​​‌​​‌‌​​​‌‌​‌‍the abandonment of this item, and therefore the plaintiff is not bound by it. But the general settlеment which is presumed to have been made on the faith of the plaintiff’s withdrawal and abandonment of this disputed item, is a sufficiеnt consideration to render this final adjustment binding. It is too late now for the plaintiff to assert the claim.

But it is insisted that the defendant should have pleaded in bar of a judgment to account, that he had fully accounted, ‍​‌‌‌​​​‌‌​‌​‌‌​‌‌​​​‌​‌‌​‌​‌‌​‌​​​​​‌​​‌‌​​​‌‌​‌‍and that he can not rely on this evidеnce before the auditor. How this would be if it appeared that the defendant had fully accounted, it is not necessary to decide, as it appears that he had not fully accounted. The Martin money, which was a partnership matter, wаs expressly excepted in the settlement and in the receipts executed by the parties. If the defendant had plеaded that he had fully accounted, the proof would not have supported the plea. One item having been excepted in the accounting would have as effectually defeated the plea, as if but one item only had been аdjusted, and all the rest left open. "When only a portion of the account has been adjusted, the *238defendant is not bound to plead specially as to that portion of the account, that he has accounted. In such case, as an auditor must be appointed to adjust the residue of the account, the whole may properly go before the auditor, and the defendant has the benefit of the evidence, so far as it shows he has accounted. It is true that the auditor does not find either party in arrear on account of the Martin money; but that makes no difference. It is sufficient that it was a partnership dealing, and was expressly excepted in the settlement, and left open for future adjustment. The defendant сannot plead in bar of a judgment to account that he does not owe the plaintiff, because such plea would draw the accounting from the auditor to the jury. The auditor does not state specifically the facts in relation to the Martin money, or upon what particular facts he finds nothing due in respect of it. It may be the ground was that each party hаd received his just share. How the accounts stood between the parties as to this money at the time of the adjustment оf the rest of the account does not appear. It may be that at the time of the settlement one was indebted to the other on account of it, and that the latter received the residue of his share afterwards before the hearing before the auditor. But this is not material, as the item was not adjusted in the settlement, and the defendant had not accounted in relation to it.

The question whether an award of arbitrators can be given in evidence as a defence beforе auditors, does not arise in the case, as no award was made. The parties agreed to submit all matters to three аrbitrators named, and the parties and arbitrators met for that purpose, and pending the hearing the parties settled. On some items which the parties failed to adjust, they took the opinion of the arbitrators, and as to those items settled on thе basis of that opinion. The substance of the transaction was a settlement and payment by the parties, and not an award of arbitrators.

Judgment affirmed.