Pierce v. Ten Eyck

9 Mont. 349 | Mont. | 1890

Blake, C. J.

Pierce brought this action to recover certain amounts which he alleged had been collected by Ten Eyck when they were copartners, and not entered upon the books of the firm, or accounted for. A referee was appointed to take the testimony, and his findings were adopted by the court. It appears that the copartnership continued from the fifteenth day of September, 1882, until the eighteenth day of March, 1886, when Pierce “ purchased the said defendant’s interest in said partnership and in the property, and resources and assets belonging thereto, paying the said defendant for his said interest the sum of $4,000.’’ The judgment consists of three items, which will be considered in their order, in the report of the referee.

One Hubble was indebted tp Pierce, personally, before the formation of the copartnership, in the sum of $422.50, which was received by Ten Eyck in the year 1883, and not placed to the credit of Pierce upon the books. The entries regarding this amount indicate clearly that it was not appropriated by the appellant to his individual use, but became a part of the assets of the firm. The account of Hubble shows that there has been placed to his credit the sum of $300, which is followed by the remark: “ Debtor to Pierce.” Hubble was in the employ of the firm, and one Locker, through a cattle trade with the parties, paid a debt to Hubble, who had another credit in the sum of $122.50. While the books are not accurate in these matters, they do not establish the right of Pierce to the whole amount. This sum of $422.50 did not lawfully constitute any part of the property of the firm, and the purchase by Pierce of the interest of Ten Eyck did not embrace or settle the account. But Ten Eyck, as a copartner, actually had the benefit of one half of the amount, which had been credited to Hubble; and the respondent should have a judgment therefor.

Pierce contributed to the firm the sum of $387.52 in excess of his share; and it was agreed that upon the dissolution of the copartnership this amount should be first deducted from the assets, and that the remainder should be divided equally between the parties. This is the second item of the account for which the respondent recovered judgment. There was no contract in writing which defines the rights of the copartners, and the evils which generally ensue under these conditions attend the parties. The sale by Ten Eyck to Pierce of his entire interest in the property of the firm worked a dissolution. (Rogers v. Nichols, 20 Tex. 719.) But we are of the opinion that the agreement did not contemplate a termination cf the partnership in this way, and that Pierce, by his new bargain with Ten Eyck, which was a purchase without any reservation of demands, relinquished all claims of this class.

The respondent testified before the referee that he feared there was something wrong; that he did not believe the books were properly kept; and that he had discovered some mistakes. The errors of which he chiefly complains are the omissions of Ten Eyck, who was the book-keeper, to make entries pertaining to the business. Pierce could have investigated thoroughly the books, with the aid of experts, if necessary, and ascertained every fact therein concerning the affairs of the firm. Instead of pursuing the course which was dictated by wisdom, when his mind was swayed by suspicion of the conduct of Ten Eyck, he purchased voluntarily the interest, of his partner. The referee finds “that the books were in a condition to mislead the plaintiff, and that, by reason of defendant’s failure to give to plaintiff his proper credits, plaintiff was misled, and plaintiff did pay a greater sum for defendant’s interest than he would have paid if he had known the true condition of the books.” This comprises a fair statement of the excuse which has been pleaded by the respondent to justify his negligence in the exercise of ordinary diligence. We confess that we cannot perceive any grounds on which Pierce is entitled to recover the amount of this excess from Ten Eyck. Mr. Justice Field, in Slaughter’s Adm’r v. Gerson, 13 Wall. 383, lays down the law in one sentence: “A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness.”

Judgment was entered against the appellant for the sum of $75, through the following finding of the referee: “That it was agreed between plaintiff and defendant that during an absence of defendant, while out of the Territory for three months, between December, 1883, and April, 1884, the firm should be credited with $50 per month to compensate for defendant’s loss of time; that no such credit was ever given.” This demand is governed by the views which have been expressed in respect to the preceding item. When Ten Eyck was absent, it was the duty of the person in charge of the book, under the direct command of Pierce, to put in black and white the figures referring to this agreement. We cannot understand why the appellant is to be held responsible for this omission, or why the respondent did not look after the business in which he was an equal partner. The claim must meet the fate of its predecessor.

It is therefore adjudged that the judgment be reversed, with costs, and that the cause be remanded, with directions to the court below to enter a judgment for the plaintiff for the sum of $211.25, and interest thereon from the twenty-third day of February, A. D. 1888.

Harwood, J., and De Witt, J., concur.