Opinion
10-07-1890
VAN HORN v. VAN HORN.
Chas. A. Skillman, for complainant. R. S. Kuhl, for defendant.
Suit by Richard Van Horn against Samuel Van Horn for an accounting of a partnership between them.
Chas. A. Skillman, for complainant. R. S. Kuhl, for defendant.
BIRD, V. C. The weight of testimony in this case leads me to the following conclusions:
1. The complainant is entitled to credit for the depreciation in the value of the bedroom suits because of the broken looking-glasses. Such suits were appraised as perfect or complete suits. He is also entitled to a credit for the difference between the step pads at $10.50 per dozen and per gross. The real appraised value fixed them at $10.50 per gross; whereas they were calculated in carrying out the total amount at $10.50 per dozen. There can be no doubt but that both parties contracted with reference to a true appraisement, whatever the sum total might be, and not with reference to a false one. Every line of the evidence shows that the parties in contracting had the appraisement in their mind. This was the only reasonable method of arriving at a fair estimate of the value, and it would be absurd to say that they considered the appraisement in any other light than a fair, just, and true one. This being so, every court would correct manifest mistakes, and see that the true valuation of the appraisers should be the rule binding the contracting parties. Had it been made to appear that a mistake of $1,000 had been made in addition, making the true valuation so much less, to say that the defendant in this case should not have the benefit of the correction of such mistake would subject the court to more than ridicule.
2. The complainant is entitled to credit for rent on the Church-Street property. The agreement upon which this claim is founded has been established. The period for which such rent is due seems to be 1 year and 41 days.
3. The complainant is also entitled to credit for boarding George Van Horn. I believe counsel for defendant admitted this to be just. The amount seems to be $453.75. Interest should be added from May 17, 1887.
4. The complainant is entitled to the amount of the Pettee order, $144.51, with interest. The complainant produced the order, and there is not a syllable of testimony to show that he is not entitled to its possession. This casts the burden of showing payment upon the defendant, which he has not succeeded in doing. The rules of law require the court to charge him with it.
5. The firm is entitled to a credit of $200, the amount of principal of the Pettee note. This was paid to the defendant, most likely in July or August, 1888. I cannot satisfy my mind that he has in any reasonable degree shown that the firm ever received the benefit of this payment. The attempt to show that the deposits, about the time when the payment was made, must have included the $200 does not satisfy me that it was so included. It is very apparent that other items from other sources were as likely to comprise the amounts deposited as this $200. The proof shows that the defendant's attention was called to this payment not very long after it was made to him, but there is nothing to show that he then, or at any other time, attempted to account for the application of the money. I desire to add with reference to the last two claims that however much uncertainty attends the transaction of these parties with respect to them, and however troublesome they have been to the court for want of clear proof, the way the case stands, it was the duty of the defendant so far to remove that uncertainty as to justify the court in concluding that the complainant had been paid the Pettee order in full, and that he (the defendant) had accounted for the $200. It being understood that in each case he was the debtor, it devolved upon him to say that he discharged the debt.
6. Mrs. Lydiana Van Horn is entitled to $10 per week for her services during all of the time not covered by special agreement made by the parties respecting such services. She entered into their service at the commencement of their copartner ship, with the undoubted understanding that she should be compensated. They failed, however, to agree upon any terms until the year 1888. Taking the testimony as a whole, respecting the value of her services, it is $10 per week. In 1888 it was agreed between them that, during the dull season, it should be $5 per week. This dull season, I believe, extended during the months of July, August, and September. When the complainant was offering testimony to show the value of her service, counsel for the defendant said that it was not disputed but that her services were worth $10 per week. If there be any wrong committed in the amount fixed as a fair valuation for her services, the defendant is principally to blame therefor, for the unvarying and unqualified testimony is that from the first, while he agreed to pay her for her services, he always refused to consent to any definite sum, although often pressed so to do. But the special agreement fixing $5 per week duringthe dull period of 1888 will be extended to the same period for all of the previous years. The parties themselves for this period of time agreed respecting the value of her services. During the balance of the year, if I take the testimony as a guide I cannot make it less than $10 per week.
7. Ellen Van Horn, the wife of the defendant, is entitled to $17 per week for the whole period of time for which she has not been paid. It has been insisted that she should be compensated according to the amount of goods sold. I think the fairer basis of compensation is the value put upon her services by all the parties both prior to, and at, the time of her entering upon the last year's services. She had been in the employ of these partners for two or three years before. From time to time they advanced her wages. The last preceding year they were $14 per week. Before the close of that year they agreed to pay her $17 per week. She entered upon the performance of this agreement, and continued in their employ under it until the bill in this case was filed, the whole period of her services being about 10 months, without questioning the fairness of her compensation as previously agreed to. She sought to enforce this agreement, demanding compensation for the whole year; but when she learned that the statutes of frauds and perjuries stood in her way, because the agreement which was not to be performed within a year from the making thereof was not in writing, she then sought to recover a larger sum by showing that her services were worth more than it had been agreed they were worth by herself and the other two contracting parties. That she had a right to make such an effort is not questioned. The real question is, what were her services fairly worth? When the whole testimony is reviewed I think full justice is done to her by allowing her $17 per week.
8. The discount claimed by the complainant on what he called "trading bills" (that is, where he made purchases of other persons on his own account, and such accounts were traded out and paid at the store of the firm by the creditor) should be allowed him to the extent of 20 per cent. on all accounts actually entered upon the books prior to the commencement of the term, when Samuel became an equal partner. Richard stated in his examination that several accounts had passed, and that no discount had been allowed him upon the books therefor. I think he should not be allowed at this time for any such items. Richard must have intended to let all such pass without claiming the discount. Had he intended to insist upon the discount, he certainly would have done so at the time the other accounts were entered and the benefit of the discount given to him. I am not unmindful that Samuel denies that there was ever any agreement that Richard should have the benefit of these trading accounts; but the settlements between him and Richard respecting three or four of these items go so far towards committing him to the agreement, when the 20 per cent. was allowed, and towards supporting the emphatic statements of Richard, that I cannot avoid the conclusion that their conduct was based upon an agreement which Samuel had previously consented to. I cannot think he would have allowed the entries upon their book-accounts, nor joined in the making the little memoranda or due-bills upon which his initials appear, unless he had previously given his consent that Richard might pay his own private bill with the firm assets at the regular selling price, and only charge himself with four-fifths of such indebtedness. But, when the last agreement was made by which Samuel became an equal partner, Richard is only entitled to 10 per cent. upon such trading bills. Interest will be allowed upon all of these respective claims from the time they were due.