Grant v. Sheerin

Belcher, C. C. This is an action for an accounting, and to recover money alleged to be due the plaintiff.

The complaint alleges that one John Grant, the plaintiff’s testator, was the owner of a certain marble monument of great value, and that, for the purpose of effecting a sale thereof, he placed the monument in the possession of the defendant, with authority to sell it; that defendant accepted the monument for and on account of said Grant, and took and held the same until some time in May, 1885, when, under the authority so given, he sold it, as plaintiff is informed and believes, for the sum of one thousand dollars, or thereabouts, and received the purchase price thereof; and that “since the sale of said monument, and the receipt by defendant of the purchase price thereof, plaintiff, as such executrix, has demanded from defendant an accounting of said sale, and the payment to her of the purchase price of said monument; and defendant has refused, and still refuses, to account for or pay the same, or any* part thereof.”

The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and his demurrer was “overruled for want of prosecution, and five days allowed to answer.” Within the time allowed, an answer was filed, which admitted “that the said John Grant placed the said monument in the possession of defendant, with authority to sell the same,” and that “the said monument was sold in the year 1885,” but denied that it “ was sold for any other or greater sum than the sum of about $550,” or “that defendant ever refused or failed to account to plaintiff for any moneys which she is or might be entitled to receive from the defendant.” The answer [199]then, set up that between the years 1870 and 1878 the said Grant requested defendant to take certain marble monuments, among which was the one mentioned in the complaint, and to do work and labor thereon, and add thereto such other marble work as would make them more valuable and easy of sale; that defendant received the monuments and did work and labor upon the same, and added a large amount of material thereto, and made the same of greater value and easy of sale; that the defendant, from time to time, sold all of the said monuments except one; that the net amount of all money received from such sales, “exclusive of defendant’s material furnished as aforesaid, expenses of sale, and work and labor done thereon by defendant, was the sum of $1,041.80”; that while the monuments were in the possession of defendant, he advanced to Grant the sum of $1,235, upon the agreement and understanding between them that whenever defendant could dispose of the monuments, he should pay himself out of the proceeds of the sale all moneys so advanced; that the defendant had not received from the sales the full amount advanced, and that there was still due him a balance, which, with interest, amounted to more than $1,000.