65 Wis. 86 | Wis. | 1886
It is objected, on the part of defendants, that the referee exceeded his authority in attempting to hear, try, and decide all questions of law and fact involved in the issue. It is said that by the order of reference the referee was only authorized to take the testimony necessary to state a true and correct account of the partnership affairs, so far as they were involved in the action, and to state a true and correct account thereof, showing the interests of the parties, and to report the testimony and account to the court. It appears to us that this is precisely what the referee did do. True, he made certain findings of fact, but these really amount to no more than a statement of the basis of the account. As said by plaintiff’s counsel, they are explanatory of the account which he was required to state, and can do no harm even if impertinent. The record shows that the defendant’s counsel moved to set aside the report because there were no proper findings of fact or conclusions of law, thus impeaching the action of the referee because he had not gone far enough in his report. This
This brings us to the inquiry whether the account is stated upon the correct basis. On this branch of the case it is said by the counsel for the defendants that the plaintiff is not entitled to any part of the collections which were made prior to May 2, 1878, and that they should not enter into the accounting. The plaintiff’s title or interest to one fourth of the accounts is derived from Chittenden. He stands in Chittenden’s shoes, and has the same rights which Chittenden would have had if he had not parted with his interest in all “outstanding book accounts” of the News establishment. When the News and Oommereial Times were consolidated, the former, with all its type, presses,
We have but very little to say upon the details of the account as stated. The defendant Magann contests many items for which he is held accountable. The evidence in respect to these disputed items is quite conflicting. ' By the copartnership agreement it was made the duty of Magann, as the business manager, to keep, or cause to be kept, in a correct and reliable manner, a set of books which would show at once the entire business transactions, and every dollar received, what it was for, and when and for what it was paid out. This he did not do; and if he suffers by being charged with items he ought not to pay, it will be in consequence of his neglecting this duty. Confessedly the books do not show the true condition of the accounts or business transactions. If they did, doubt as to many of the disputed items would be removed. The $500 received in the fall of 1878 from Mr. Black was never entered upon the firm books, though the evidence is entirely conclusive that it was not a personal matter, but belonged to the firm. This same remark might be made as to other disputed items in the
By the Coxurt.— The judgment of the county court is affirmed.