59 Ala. 360 | Ala. | 1877
The main question presented by the record, is one of fact, to ascertain from the evidence, whether any indebtedness, and if any, the amount thereof, is owing by the testator of the appellants to the appellees. The testator, Monroe P. Watts, the appellee John PI. Bostwick, and James A. Branch, the intestate of the appellee Berry, were for a few months, from the fall of 1865, to the 17th day of March, 1866, partners doing a general commission business in the city of Mobile. The partnership was dissolved, and Watts was left in possession of the partnership books, and assets, having exclusive authority to settle its affairs. By the terms of the partnership, he was entitled to one-half of the
The book of a commercial partnership, and the entries therein, vrhen all the members have free access to them, are •evidence for and against the several partners in settling the partnership accounts. The entries are presumed correct until the contrary is shown.—Desha & Sheppard v. Smith, 20 Ala. 747. It is shown very satisfactorily, that after the dissolution, each partner had free access to the partnership books, though they were in the possession of Watts. The entries on these books were made generally by Bostwick, who states in his deposition, that after the dissolution, he went to Watts’ office every day or two, “to write up the unfinished business.” These books should have been received by the register, as evidence for and against all the partners. Moreover, it is averred in the bill, these books are in possession of the defendants, and they are required to produce them. When a bill requires a defendant to produce books and papers for the purposes of an account, on production, they become
As we understand the evidence, if the partnership accounts had been stated from the partnership books, no balance, or if any, a very inconsiderable balance, would have been found due from Watts to the appellees. The evidence of Under-hill, is the only evidence on which it is claimed that such balance exists. He ivas twice examined—once by deposition, and then orally before the register, the examination being reduced to writing, and accompanying the register’s report. In his deposition he says: “ I was more than once desired by M. P. Watts to make up a statement of the amount he owed on settlement to Bostwick, and Branch’s estate. I did so several times. I forgot the balance I made out to-Branch’s credit. Bostwick’s balance was I think between $2,000 and $3,000, and I have always said so. The statements which I made up on at least two several occasions were always placed by Mr. Watts in his pocket-book.” We can not understand this statement as meaning more or less than that the witness ascertained from the books, and other-sources of information, whatever they may have been, which were accessible to him, the balance due to Branch, and the balance due to Bostwick separately. There was no ascertainment, and no effort to ascertain any balance as due them jointly. It is too uncertain, and too indefinite to sustain any claim on the part of Branch.— Watson v. Byers, 6 Ala. 393; Baxley v. Gayle, 19 Ala. 151. As to Bostwick, it may satisfy the mind, that there was a balance due him as ascertained by the witness, of not less than two thousand dollars. In his examination before the register, the witness says, testifying in reference to the same matter: “ While I was in his employment in April or May, 1868, I made out the account three times I think, and gave it to Mr. Watts. The balance due Branch & Bostwick was between twenty-one and twenty-two hundred dollars, according to the best of my recollection, and I made this account.in consequence of Mr. Watts telling me to take the books, and make out such account as
The decree must be reversed and the cause remanded.