144 N.W. 103 | N.D. | 1913
Tbe defendant, with a partner named Allert, owned and operated a drug store at Langdon, North Dakota, from about 1894 up to tbe year 1904, at wbicb time tbe plaintiffs, wbo are practising physicians, purchased tbe interest of said Allert. Thereafter, for a period of twenty-six months, tbe business was conducted under a partnership arrangement whereby the defendant owned a one-half interest therein, and the plaintiffs each a one-fourth interest. During the said time the defendant was in sole charge of the business, doing all of the purchasing, paying bills, and hiring help. Bor these services he was to receive from the firm the sum of $75 per month. The plaintiffs had no voice in the affairs of said business. The defendant kept the books of the firm, a cash book, a blotter, collection register, bills receivable, and other books. He testifies that he kept a cash register through which all items of cash received, including collections, were passed; that each night he took the cash from the register and placed it in the safe until morning, at which time it was counted and an entry made in the cash book of the amount found. He further testifies that whenever a collection was made, that the money was taken to the cash register and placed therein, and that the only way that the total amount of cash sales could be ascertained was by subtracting the total amount received upon collections, as shown by his collection register, from the total items of cash sales, as shown by the cash book.
After the business had been run the said period of twenty-six months, the plaintiffs became dissatisfied with the conduct thereof and began this action for a receivership and an accounting between the parties. An expert accountant named -Higgins was hired by the plaintiffs to make an examination of the books of the firm and ascertain the condition of the business. This accountant prepared a very thorough and painstaking statement showing among other things the amount of cash received into said business from all sources whatever and the amount of cash expended for all purposes. As a result of this
Q. Then tbe difference between yourself, Mr. Burke, and Mr. Higgins as shown by bis account, is tbe difference of $4,000.65, is it not?
A. Wby, I guess that is tbe case, all right.
Q. Now, then, Mr. Burke, assuming that Mr. Higgins in this account, or to arrive at this result, has charged you with tbe collections to tbe amount of $5,178, and assuming also that tbe total amount of tbe debit side of tbe cash book, with tbe exception that be deducted $1,137 from tbe total of bis collections, — now tbe amount of the deduction by reason of tbe total inclusion of tbe items of collections would be tbe amount of $5,100 less tbe $1,100, would it not?
A. I believe so.
Q. Now tbe $5,100 of collections less tbe $1,137 leaves bow much?
A. $4,041.35.
Q. Now tbe amount is to a very close degree of approximation tbe amount which bis statement of account shows due from you?
A. I believe so.
Q. So that oiitside of this matter of cash through tbe collections and daily sales, you and Mr. Higgins practically agree on tbe account ?
A. I believe that is right.
As we have before stated, this lawsuit depends entirely upon whether or not we accept tbe defendant’s explanation of bis entries of cash sales. If we take bis statement as true, it wipes out tbe balance against him shown by tbe books, and the judgment of tbe lower court must be reversed; on tbe other band, if we bold defendant to tbe entries which be has made under tbe designation of cash sales, a simple calculation shows that be has failed to account for a large sum of money. Tbe plaintiffs have accepted this challenge, and in a lengthy brief have pointed out tlieir reasons for disbelieving tbe defendant. Among tbe strongest of those reasons is that upon many of tbe days where tbe collections are claimed by defendant to have been included in tbe item of cash sales, the collections made were larger than tbe said cash item. Bor example, upon June 2d, 1904, tbe cash book shows cash sales amounting to $10.80, and tbe collection register for that day shows a collection of $12.28. Evidently tbe collection made that day was not
' In addition to those reasons, it might be pointed out that the defendant was a man of considerable experience, having run this business for more than twelve years and having a partner all the time. During this time he kept the books, and it is very improbable that he would