Nims v. Nims

20 Fla. 204 | Fla. | 1883

The Chief-Justice delivered the opinion of the court.

The master’s report does not state an account in such form that it can be determined from it what amounts were advanced or paid by either party on account of conducting the partnership business or for acconnt of the purchase of the land, machinery, mules, carts, provisions, wages, taxes,. &c., mentioned in the pleadings and as to which, testimony was taken; nor does it show what, amount of lumber,'either by measurement or value, was sold or disposed of by either part}’, nor how much of it remains on hand in the possession of either party, if any.

The report fails to show what became of the crops of corn, cotton, &c., raised by complainant on the lands of the-parties and by the labor of the hands and teams belonging' to the parties as alleged in the answer and in regard to which proof was taken, or how the proceeds were disposed of. The report only shows as to the partnership transactions, the differences that appeared between the debit and-credit side of the accounts kept by each party with the “mill,'’ with no data whatever by which it can be determined that the books and accounts related to the joint business of the parlies, nor what items were allowed or what rejected.

As to the several items oí indebtedness of A. S. Nims to C. E. Nims, which had accrued prior to the commencement of the joint business allowed by the master at $2,281.97 against A. S. Nims, there is no charge in the bill of the items comprised in this amount as the basis of a decree or judgment, and the prayer of the bill does not demand judgment upon them. It is merely stated in the bill that the amounts had never been paid by A. S. Nims, for the purpose of showing that he had not been in very prosperous-circumstances before this lumber business was entered into-between the parties. The report includes the amount as- “ amounts paid by C. E. Nims,” and adds it to the balance-due on partnership account. According to the testimony ot A. S. Nims, defendant, these items (so far as they are-proved, with one or two exceptions,) should have been credited to O. E. Nims in the -account, and charged against AS. Nims, as so much advanced by C. E. Nims on account of the joint business, to be disbursed by A. S. Rims in the purchase of stock, property and supplies for the joint business for which, when disbursed, A. S. Rims had credit in his account against the mill.

One of the items, “ amount paid by-O. E. Rims on engine, $200,” is allowed as indebtedness of A. S. Rims to C. E. Rims. This allowance is wrong on the face of it.. It was money paid, according to complainant’s statement, on the purchase of an “ engine, saw, mill, carriage and boilers,” for the use ot the joint business. This should be a charge against the partnership concern and not against the defendant.

Further criticism of the report is unnecessary. This report is not intelligible upon its face for the reasons stated, and for other reasons which will appear by an examination of the books and accounts which have been sent up for our inspection and have been examined.

The result of the account should be stated in such manner as to afford the court the means of judging whether it is correct. 2 Dan. Ch., 5th Ed., 1301, n. 2; Robertson vs. Baker, 11 Fla., 192; June vs. Myers, 12 Fla., 310.

“ All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor.” Eq. Rule, 80.

When a report is made upon accounts exhibited to the master such accounts should accompany the report that the court may see the correctness of the master’s inferences. Jeffreys vs. Yarborough, 2 Hawks, 307.

The master should state the account at length and all the facts found by him,, so that they will be intelligible without reference to the testimony. Herrick vs. Belknap, 27 Vt., 673.

He should state what items are allowed and what disallowed. Reed vs. Jones, 15 Wis., 40.

His report should so present, the items that exceptions may be taken to it. Ransom vs. Davis, 18 How., U. S., 295.

The report of a master stating the accounts of a mercantile firm should show whether the partnership resulted in a profit or loss, and to what extent. Zimmerman vs. Huber, 29 Ala., 379; Hicks vs. Chadwell, 1 Tenn., Chy., 251.

This report is not a proper basis of a final decree, because a final decree ought not to be made until the debts of the concern are ascertained and adjusted, (2 Dan’l Chy., 5th Ed., 1250,) unless the partner in advance will deduct the amount of the debts from the amount due him. Tyng vs. Thayer, 8 Allen, 391.

In taking such accounts, the partnership books must, if not successfully impeached b}’ the pleadings and proofs, be taken as prima facie correct; and if lost or destroyed the best evidence is proof of their contents. Hicks vs. Chadwell, supra.

The foregoing cases are cited in 2 Dan. Chy., 5th Ed., 1301, 1.

It seems clear from the authorities that under the written agreement of counsel the order confirmihg the master’s report “ should be vacated and both parties permitted to file exceptions,” it appearing that sufficient grounds were shown “ for a review of the report ” upon exceptions tendered.

We find in the record no decree that a copartnership existed between the parties.

This was doubtless an inadvertence, as it seems the court finally decreed a dissolution.

The existence of the partnership should be found aud decreed before ordering an accounting.. “It involves the whole merits of the ease, since su,eh a reference can never be made until the defendant is found by the court to be bound to account, and that is the question to be decided at the hearing.” McLin vs. McNamara, 1 Dev. and Bat. Eq., 407, Ruffin, C. J.,

' The final decree and the decree of January 1, 1883, are reversed and the cause remanded with directions to enter such decree as to the existence of the partnership as may appear to the Chancellor to‘be warranted by the pleadings and testimony, and thereupon, if a copartnership be found, to refer the other matters iu issue to the 'same or some other competent master for a more complete report upon the testimony already taken, or that further testimony he taken if deemed necessary to a full investigation and understanding of the matters of controversy, and for such further proceedings as may be had in accordance with the rules,and practice of the court.