314 Mass. 70 | Mass. | 1943
This is a bill in equity in which the plaintiff seeks an accounting, by the defendant, of the affairs of a partnership that had existed between the parties. The case was referred to a master, who filed his report, append
The report of the master stating the account between the parties covers sixty pages of the record. No useful purpose would be served by setting forth here the detailed account and the series of schedules contained therein, with which the parties are familiar, and the recital of which would add nothing to our jurisprudence. It will be sufficient to summarize briefly the findings of the master that are necessary to the proper disposition of the case. A summary of the material facts follows.
In 1929, the parties, who are brothers, formed an oral partnership at will for the conduct of a plumbing business, which they carried on as partners until March 28, 1938. Each of the parties devoted his full time to the business, which was conducted under the name of R. and A. Y. Woodacre. The books of account were kept by the defendant at his home, where he did the bookkeeping at nights, on holidays and week-ends. The defendant also prepared most of the estimates for contracts and in general superintended the work. The plaintiff was engaged for the most part in “doing manual labor” in connection with the business. The partnership was dissolved on March 28, 1938, and each of the parties commenced doing business on his own account. In November, 1937, the parties had a disagreement and retained a public accountant, who examined the records of the partnership, starting with the books of account as of January 1, 1935. He made a painstaking report consisting of several schedules and accounts, which were introduced in evidence before the master. The master examined each book, customers’ ledger, checking account, and tax returns of the partnership, as well as other evidence, in arriving at his conclusions. The public accountant before referred to testified before the master. He testified that “if the partnership checking account
It would be of no value to set forth here the master’s finding with relation to the various schedules contained in his
The real controversy in the case centers around the finding of the master that the defendant owes the firm $1,577.42 under schedule A, representing amounts collected by the defendant from third persons indebted to the firm, and the disallowance by the master of credit to the defendant of $3,526.67 paid in satisfaction of partnership bills over the same period of time, but not entered in the cash book. But as to this latter sum there was no evidence that any money was borrowed to pay these bills of the partnership, or that either the defendant or the plaintiff paid them out of his own pocket: Accordingly, the master found that they were paid out of partnership funds. The difference between the amounts received by the defendant but not entered in the cash book ($1,577.42) and the amounts paid out but not entered therein ($3,526.67) is $1,949.25. The master did not find that any part of the $1,577.42 was used to pay the bills of the firm, since it was a fair inference that there “was ample money in the form of a surplus in the partnership account during . . . [the period involved], without giving effect to any collection of any items not entered in the cash book as collected” during that period. The master further found that upon all the evidence with respect to this issue he was not satisfied that the defendant was entitled to credit for any of these bills which he contended he paid and did not enter on the cash book; and that he had not sustained the burden resting upon him of proving that he personally should
The grounds of the defendant’s complaints are as follows: He contends that the master used the cash book method in behalf of the plaintiff in determining the indebtedness of the defendant to the firm, but abandoned it and used the partnership ledger, checking account, and income tax returns as the basis for denying the defendant credit for $3,526.67 and likewise with respect to similar items; that he is being charged twice with the amount of $1,577.42; and that the master’s findings as to the source of the amount of $3,526.67 credit that was denied him are based on supposition and conjecture.
We are unable to concur in these contentions of the defendant. It is to be observed that the master stated in his report that he adopted the cash book method “except where the evidence clearly shows that there should be made an exception to the application of this principle.” The master based his conclusions upon all the evidence presented before him, and not all the evidence is reported. Hence his conclusions or ultimate findings must stand unless subsidiary facts found by him are sufficient in themselves to demonstrate that the ultimate findings could not be justified upon any evidence that he might have received. Dodge v. Anna Jaques Hospital, 301 Mass. 431, 435, 436, and cases cited. In the present case we see no reason for disturbing the ultimate conclusions of the master stated to be based upon all the evidence.
With respect to the objections of the defendant to methods employed by the master in stating the account the answer is that “Where one assumes the duty of keeping the books, reasonable presumptions are made against him when he disputes their accuracy. . . . But this means a set of books which was a reasonably correct representation of the firm’s affairs. It . . . [does] not mean books so full of palpable mistakes and grave errors as to be manifestly untrustworthy and incapable of showing justly the affairs of the firm. Under the circumstances disclosed, the only course open was to correct the errors so far as possible,
The interlocutory decree confirming the master’s report is to be modified by inserting an order overruling the defendant’s exceptions to the master’s report, and as so modified is affirmed. The final decree is affirmed with costs.
Ordered accordingly.