Opinion
02-11-1893
MAPS v. SLOCUM.
John W. Swartz, for complainant. Heisley & Morris, for defendant.
(Syllabus by the Court.)
Bill for an accounting by William R. Maps against Rachael U. Slocum, executrix of her deceased husband, John Howard Slocum, for an accounting as to a partnership that existed between complainant and deceased.
John W. Swartz, for complainant.
Heisley & Morris, for defendant.
BIRD, V. C. On the 21st of September, 1884, the complainant, and the husband of the defendant executrix, and the father of the said husband were engaged in the lumber business. The deceased testator did the principal part of the book-keeping and collecting. At the date given, William L. McIntyre owed the firm for materials $142. On that day he gave a note to the firm for $890. This included the account for lumber, and for other transactions not entered upon the books of account, and $300 in cash. A chattel mortgage was given by McIntyre upon his interest in goods which were owned by himself and one Gantry. These goods were afterwards sold for $1,000, and the money was collected by Gantry, but no part" of it was ever paid over to Maps and Slocum, the said partners. The note was made payable at the bank, and was renewed several times until October, 1885, when it was protested for non payment. The cashier of the bank was called as a witness, and he said that he had not been able, for want of sufficient time, to determine how the note was paid. He said there was no doubt but that it was paid the bank, and he presumed it was paid by charging it to the account of the firm, for they at that time and afterwards had a large balance in their favor. In November, 1885, McIntyre became financially embarrassed. All his interest in certain real estate was sold under an execution at law, and purchased by John Howard Slocum, the deceased testator, for $—. In December, 1887, Mclntyre and wife conveyed all their right, title, and interest in the said lands (the wife at that time having an independent one-fourth interest) to the said John Howard Slocum upon the understanding that he would collect all the rents, and apply them to the payment of the said note, and any other claims that the firm might have against him, and to the payment of any individual claims that he might have against the said McIntyre. In the fall of 1886 the firm determinedto close their business, and rented their premises to another firm, giving it the possession, with the understanding that the lease would take effect on the 1st day of April, 1887. About this time,—the exact date being uncertain,—John Howard Slocum made a statement of the claims that were due to the firm from different individuals. There is nothing to show definitely whether this was intended by him to include all of the claims or not. It certainly did not include the amount due upon the note given by McIntyre to the firm; nor is there anything upon the books which show by any reference to the note itself that the amount due upon this note has ever been paid to the firm. John Howard Slocum died in 1889. Since his death this bill has been filed against his executrix, who is his widow, charging that he collected the amount due upon this note, and retained it, and that the said executrix is liable to account therefor.
It is urged that the burden is upon the complainant, and especially so since the note in question was not found among the assets of the partnership after the death of John Howard Slocum, but among his own private papers. This view is enforced by the fact that he kept an account headed an "Account with the Mansion-House property," (being the title of the principal part of the real estate conveyed to the said Slocum,) in which he had the amount of this note against the said property. I think it would be a mistake to cast the burden of proof in this case upon the complainant. John Howard Slocum was a member of the firm. The note which was taken from McIntyr9 was taken in the name of the firm. He took the chattel mortgage in the name of the firm as security for its payment, and allowed all the goods therein named to be sold, and the proceeds thereof to pass to the hands of another. He took title to a large amount of real estate, with the express understanding that he would collect the rents and profits thereof, and appropriate them to the discharge of this and other liabilities of McIntyre to the firm and to himself. Under such circumstances, the fact that he had possession of the note, which at one time was unquestionably an asset of the firm, affords no presumption whatever that it had become his own private property. It would be a strange doctrine to hold that, because one partner had in his own possession the goods or assets of a firm, it cast the burden of proving the fact that they belonged to the firm upon the firm. To my mind, the burden in this case rests wholly upon the defendant; it appearing by the note itself that it once belonged to the firm. If she claims the note as an asset of her husband's individual estate, she must show that she has properly acquired title thereto. It is fair to infer from the situation at the time of the death of John Howard Slocum there had been no settlement between him and McIntyre. The circumstances, as well as the proof, show this. This must have been so understood by the defendant, Mrs. Slocum, for she, on the 7th day of Novemher, in the year 1889, made a settlement with McIntyre, in and by which she agreed to allow him $1,400, and in satisfaction of that amount conveyed to him real estate estimated to be of that value, in consideration of his releasing to her absolutely all the balance of the real estate which was formerly conveyed to her husband as security for McIntyre's liability to her said husband and the said firm it cannot be disputed that John Howard Slocum made himself liable to the firm for the amount of the $891 note to the extent of the value of the rents and profits of the lands named. Nor can it be disputed that up to this time it has not been demonstrated in any manner that he discharged such liability to the firm in his life-time. 1 say "demonstrated," because it does appear that he collected a large amount of rents with which he credited McIntyre, and which therefore appear upon his accounts with the firm; but, notwithstanding these facts, it does not appear that the credits thus given to McIntyre were sufficient to discharge this note. This results from the very imperfect orun-systematic manner in which the books of the firm have been kept, for which John Howard Slocum is chiefly responsible. But this should not deter the court from making a further effort to ascertain the very rights of the parties. To this end a reference will be made to a master, with directions to make and state an account between McIntyre and the firm from the time of giving of the said note until the death of John Howard Slocum.