Roberts v. Eldred

Hatee, C. — Action for dissolution of copartnership and accounting. The case was referred to the court commissioner to report the state of the accounts. After taking testimony, the commissioner made his report, which consisted principally of matters of mere evidence, and showed that the balance coming to plaintiff was $8,610.35. There was then a trial before the court. The court filed findings of its own, which referred to and adopted the report of the commissioner. Judgment was thereupon entered for dissolution of the copartnership, and the sale of the firm property, and the application of the proceeds to the payment of certain specified debts of the firm, and of the sum found due to the plaintiff, viz., $8,610.35, and that judgment be docketed against defendant for any balance which might remain due to the plaintiff after such application of proceeds. The decree also declared these sums to be secured by lien on the firm property. The record is tangled and confused, and almost everything that occurred is alleged as error. We deem it sufficient to notice the following points: —

1. It is said that the evidence does not show that so large a sum as $8,610.35 was due to the plaintiff. But we cannot say from the record that it was not. The record shows that the conduct of the defendant was most reprehensible. For two years before suit “ he did n’t do anything but spend his time at Haines and Snyder’s stable across the street.” He had charge of the books, but kept them in a grossly improper manner, omitting to make entry of sums paid in by plaintiff, and making improper charges against plaintiff, and improper credits in his own favor. These books, although introduced in evidence, are very naturally not in the record. The fact that the “ expert books ” showed a balance in favor of plaintiff of only one hundred dollars, which is so much insisted on by appellant, does not seem to us to be very material. These expert books were merely an in[396]telligible presentation of what was in the books of the firm, which were grossly incorrect and insufficient. In response to a question of the court as to whether everything was in the new books that was in the old books, the expert answered: “ No, sir; our report wrill tell you they are not all entered. We did not claim to take the position of referee; we left that out very carefully. We posted every entry of cash, and all the entries that we found in the cash-books, into the new books, and made up a complete new set. We opened an account with every one that Mr. Eldred’s books showed had paid in or received cash, and made no changes in the account, except some that were made under the testimony and as directed by Mr. Eldred, the defendant, who was with us a good deal.” Eldred’s books, however, were incomplete. “ He kept no ledger account to amount to anything, no account of sales or purchases, stock, bills receivable, profit and loss, — nothing, in fact, but cash account, such as it was.” Many of the accounts which he did keep were false, and credit was not given to plaintiff in cases where it ought to have been. It will not do for defendant to take refuge behind such books as these. If the result which the referee and the court arrived at was not correct, the record should have made the error appear. The only thing which is clearly apparent from this record beside the misconduct of the defendant is hopeless confusion in the accounts. It is eminently a case where the action of the court below should not be disturbed.