38 Wis. 526 | Wis. | 1875
It is not material to our view of this case to criticise the order of reference or to determine the precise power of the referee under it. Eor with whatever authority he formed his opinion of the case, we quite agree with it.
We do not think that there was evidence to sustain either of the two items suspiciously added to the respondents’ account, after the demurrer had been sustained to their first answer; apparently to take the account out of the statute of limitations. As to the first of them in date, the Jones order, it was confessedly a transaction between the appellant and Runkel & Ingersoll, and not between the appellant and the respondents. And even if it had been “turned over” to the respondent George Bunkel, as he says, it had no legitimate place in the account of the respondents, or in an offset for them in this action. Whether the payment of it was a debt incurred or a debt paid we need not inquire, and could not well determine in this action. And as to the second in date of the two items, the flour, there certainly is no satisfactory evidence to charge the appellant with it.
But if these items had force to take the respondents’ account out of the statute, we are of opinion that it was covered by the settlement between the parties, when the note in suit was given. It is hardly denied that there was then a general settlement ; but it is insisted that this part of the respondents’ account was not included in it. It is apparent, however, that the account now set up by the respondents, properly formed
It will not do to say that it was a different account which was settled. We hold that the evidence shows a general settlement, including the accountof the respondents for goods, etc., furnished to Andrew Scott for the appellant. And an attempt to show that part of the goods, etc., so furnished, was omitted, is an attempt to surcharge the account. 1 Story’s Eq., § 525.
And, aside from the statute of limitations, we are clear that there is not evidence to authorize the court to open the settlement. “ The evidence to surcharge an account should be clear and satisfactory.” Marsh v. Case, 30 Wis., 531. “ Principle and public policy alike require that when parties, after a full and fair opportunity of examining and deciding upon their mutual accounts, have adjusted and settled them, the settlement should be conclusive. Any other rule would be dangerous and oppressive, and often work the greatest injustice.” Martin v. Beckwith, 4 Wis., 219.
By the Court. —The judgment of the court below is reversed, and the cause remanded with directions to give judgment for the appellant for the full amount of principal and interest of the respondents’ note set out in the complaint.