Opinion
07-30-1890
BRANDS v. DEPUE.
G. A. Angle, for complainant. William H. Morrow, for defendant.
On bill for accounting.
G. A. Angle, for complainant. William H. Morrow, for defendant.
BIRD, V. C. I have given this case an extraordinary amount of consideration, and the satisfaction at the result has been as slight as the work has been great. I have endeavored to satisfy my own mind, at least, of the right order to advise in all particulars, but without success. Turning away from this consideration, I have found that the only method by which I could come to any conclusion at all satisfactory was to take the ordinary rules governing in weighing testimony, and applying them to this case. Hence in settling the various items in dispute I have been governed by what seems to me to be the preponderance of testimony.
My anxiety in the case has been increased by the consideration of the fact that these parties exhibited so much confidence in each other as to become extremely careless in keeping their accounts, each trusting the other as though memory was infinite, and honesty of the parties incapable of being controlled by necessity or prejudice, and then at length became so mistrustful of each other's ability to remember or speak the truth that the one contradicted under oath whatever the other declared under oath in respect to the important matters considered.
First, as a basis, I will start with the settlement which it was said was made November 27, 1886, between the parties in the presence of Mr. Angle. In that settlement Brands was credited with the sum of $2,862.65. It appears that this credit arose as follows: Depue, as a member of the firm of Depue, Son & Co., had given his notes payable at the Phillipsburg Bank, in all amounting to the sum of $2,062.75, and Brands himself had given his own note, payable at the Phillipsburg Bank, for $800, which he says was used in the interest and for the benefit of the said firm. The said notes, when given by Depue, Son & Co., were all protested for non-payment. On the 8th day of September, 1886, Brands gave his own note to the bank for the amount of the said notes so given by the firm, and the said $800 note, making the sum of $2,862.75. On the day Brands gave this last note to the bank he learned for the first time of the existence and protest of the other notes, and on his return to Belvidere inquired of Depue about them, and informed him at the end of the year the partnership must be dissolved. It was so dissolved at the end of the year, November, 1886. November 27, 1886, the settlement above alluded to was made by Mr. Angle between the parties, and that is when the $2,800 credit was allowed to Brands. About one year thereafter a copy of this settlement was furnished to Depue. This settlement he had held for over a year after receiving it before he took any exceptions to its correctness. Under such circumstances, unless error be manifestly shown, the court cannot, when the testimony is very conflicting, regard the settlement as erroneous. Depue disputes the application to the partnership of the $800 note. The preponderance of testimony satisfies me that in this he is in error.Depue also disputed the application of three of the other notes which were taken up by Brands when he gave the bank the $2,800 note referred to. On a like principle, I must conclude Depue to be in error in this particular. The notes referred to are the Palmer, Melroy, and Raymer notes. Depue insists that Brands received the amount due on these three notes. Brands admits that Depue paid him the amount of the Palmer note of $15.22. The Butler and Raymer notes were passed by Brands to Depue on the evening of the day Brands took them from the bank. Depue says he paid Brands the amount of them that day This is denied by Brands. When the circumstances are considered, it seems most likely that Brands is right. These notes were accommodation notes, the maker never having received any consideration therefor, but are indorsed by Depue in the name of the firm. I cannot but think that, if Depue had had the money with which to discharge these obligations, he would not have allowed them to go to protest, or had they been so protested he would not have allowed the knowlege of their existence to come to Brands. These notes were delivered by Brands to Depue on the day Brands took them from the bank. Depue say he gave Brands the money for them that day in cash. The settlement above referred to was made only a little over two months and a half thereafter, in which Brands was allowed the credit for these very notes. It does not seem very reasonable that Depue should have submitted that these two notes, amounting to the large sum of $391.54, should have gone into that settlement against himself if he had paid them in cash on the 8th of September. I think Brands should be charged with the sum of $281, part of the amount due upon the Melroy note. This first settlement between the parties in the presence of Mr. Angle was made November 27, 1886. There can be no doubt but that the paper upon which the statement representing the settlement was made, November 27, 1886, was frequently produced before Depue by Mr. Angle, afterwards, when Depue would bring money which he had collected on these notes to Angle, and Angle would give him credit therefor in his presence on this paper. After these transactions, and on October 15, 1887, another settlement was made between the parties by Mr. Angle, when it was ascertained that Depue owed Brands $1,161.36. All this time had passed, and all these transactions had taken place, without Depue in any wise criticising the first settlement made, or disputing the claim of Brands for the credit $2,800, or the correctness of any of the other items in that settlement. At this last day, October 15, 1887, when the settlement shows that Brands was entitled to $1,161.36, a copy of the settlement, made nearly one year before, was handed to Depue, which he retained in his possession. He says he never examined it for more than a year thereafter, and that when he did examine it he observed the errors which he now claims are in it. Depue seems fully to recognize the statement and settlement made in October, 1887. In October, 1888, he himself makes a statement in which he shows what he insists is due to him from Brands & Read. In October, 1887, about the time of the settlement then made between them, Depue sold all his interest in the business which had formerly been carried on by Depue, Son & Co. to Brands & Read, and at the time of that sale the settlement was made which gave to Brands the credit above referred to of $1,161.36. This sum, $1,161.36, so due to Brands, was applied in liquidating the indebtedness to Depue upon the purchase of his stock in trade. After such application was made, and the value fixed upon the price included, the settlement was continued, and the balance ascertained at the same time; that is, in October, 1887. Such balance was found to be due to Depue, and it was the sum of $85.54. Now, in the statement which Depue made about one year thereafter, he charged Brands with the amount of this $85.54, and with interest thereon from the date of the settlement last previously made. It seems to me that it would require very strong proof, indeed, to overcome the settlement which the parties had previously made, and which has been sworn to as correct by two credible witnesses, before the court can come to the conclusion that there is serious error in them, after the party alleging error has had such full opportunity of knowing the contents of them, and has had possession of the statements, and ample opportunity to examine them long before he raises any question as to their correctness. While I think Brands is entitled to a credit for the $2,862.75, I am not prepared to say that he is entitled to the interest for one year there on; for, when the settlement was made in 1887, no interest was claimed by Brands; and I am proceeding upon the conclusion that the settlements of November, 1886, and of October, 1887, were fairly and understandingly made, and that each party was then satisfied with them, and that they ought to be bound thereby. I conclude that Brands is entitled to a credit of $80 for the note which he held against Depue.
The weight of testimony leads me to the conclusion that of the money advanced by Brands to the concern there remains due to him the sum of $384.90, besides the amount secured by mortgage. As to the payment of the $181.11 by Brands to Kerr Bros., I conclude that he is entitled to a credit therefor. The weight of testimony leads me to this conclusion. It seems that the money and note which Depue claims were applied in satisfaction of this $181.11 were not so applied, but that he had credit therefor; so, also, as to the $100 Melroy note and protest, which is $101.67. As to the Cline note of $23.94, the Sharrott note of $43.44, and as to the Shafer note of $15.42, I conclude that Brands is entitled to a credit therefor. As to the note given to the Superior Drill Company, for $420,1 find that Brands is entitled to a credit for the amount of it, with interest, and the costs which were incurred, less the price agreed to be paid for the two horses and the harness. The weight of testimony fixed these at $185. It is upon the balance that the interest is to be allowed.
It is alleged by Depue that in ascertaining the profits of the partnership mistakes were made in not bringing into the account the capital invested, and in including supposed sales and accounts which proved valueless, and in not including expenses, such as freight and the like, which were afterwards discharged by the partnership. The burden of showing this was upon the defendant, and I think he has in-contestably established the fact that there wore mistakes in these particulars. He claims that this would reduce Brand's share of the profits from $2,537.66 to $1,513.13. The testimony quite clearly makes this difference, and the latter is certainly much more nearly correct than the former. However, as the point in dispute was whether there was error or not rather than the extent of it, if counsel cannot agree as to the items, there will be a reference to a master to take further proofs upon this point, and to make and to state an account between the parties, and to report the same to the court. I desire to add, however, that I have so far looked into the matter, and given such attention to the arguments of counsel, as to satisfy me in saying that the defendant in this particular cannot be far out of the way. But the complainant insists that, if this be the conclusion of the court, then the court should take hold of the agreement entered into between Brands & Read upon the one part, and Depue & Son upon the other part, in October, 1887, when the former purchased the stock in trade of the latter, and should reduce the consideration agreed to be allowed to Depue & Son for such stock in trade at least $1,000: giving as a reason therefor the allegation that Brands & Read allowed Depue & Son at least a thousand dollars more for such stock than it was worth, because in making such deal upon the basis of the profits of the former partnership, being $2,537.66, the said stock was more nearly paid for, which was the motive of allowing so large a price for the stock; whereas, Brands insists the truth is the said stock was worth at least $1,000 less. Upon the principle which has controlled me in the conclusions heretofore reached I must decide that the complainant cannot prevail in this contention. As in the other instances when the parties came together and dealt with each other face to face, and made other statements, proceeded to other settlements, and exchanged accounts for stock and stock for accounts, and no error being plainly established except that of valuation, the one asserting the error must fail. Plainly, an excessive price cannot avail him in revoking or altering a contract who offers such price with his eyes open. If perchance he can make an advantage himself, he will do so; but, if be fails, he cannot charge the other side with his folly, since it does not appear that the other side misled him. But, if I were to take the arguments and the reasoning of counsel for the complainant to aid me in coming to a just solution of this part of the transaction, I would be led to say that Brands deemed Depue to be so depressed by his debts as to be unable ever to satisfy him for what was due, and that he could well afford to allow an exorbitant price for such stock, since Depue would have no cash to pay, and would thereby satisfy a claim to some extent which otherwise would probably never be paid at all. In the settlement of the rights of the parties in this case, I have given no little consideration to the testimony of Mr. Angle, the solicitor and counsel of the complainant. I have done this because it seemed to me under the circumstances to be justifiable. He undoubtedly told the truth without regard to consequences. But, however sincere he may have been in his purposes, I feel it my duty to say that it is always to be regretted when a member of the bar allows himself to be a solicitor or a counsel in a cause when it is of importance to his client's interest that he should become a witness in support of such interests. I believe it is the desire of all courts to restrain members of the bar from acting as solicitors or counsel and also as witnesses in the same cause with respect to the principal matters in dispute. I never felt the importance of this principle more decidedly than in this case, and in this case it was intensified because of my confidence in and respect for the counsel; and, notwithstanding this confidence and respect, the testimony which he gave would have had decidedly more weight had he not had the interest of his client at stake.