Chubbuck v. . Vernam

The case does not contain the evidence given on the trial, and it is sought to review the judgment upon the findings of the referee. The referee, in the first instance, made a brief general report, in which he simply found there was nothing due to the plaintiff, and he ordered judgment to be entered in favor of the defendant. From this we are bound to infer that he found all the issues of fact against the plaintiff. Upon this report judgment was entered against the plaintiff. After this general report was made, the referee was procured to make other findings, which were annexed to the judgment roll. In reference to the first settlement it is said: "The conclusions of fact found by the referee are as follows." Then certain facts are found closing as follows: "The referee therefore found, as a conclusion of law, that there was not sufficient evidence of fraud or mistake to open the settlement between Vernam and Marshall. To which decision the plaintiff duly excepted." Then, in reference to the last settlement, it is said: "The referee further *Page 435 found, as conclusions of fact, as follows." Then, again, certain facts are found, closing as follows: "The referee found, as conclusion of law, that there was not sufficient evidence of mistake or fraud to open the accounts between Vernam and Chubbuck. To which decision the plaintiff's counsel duly excepted." These two exceptions are the only ones we are called upon to consider. The referee has found that there was not sufficient evidence of fraud or mistake to open either of the settlements. Yet we are asked, without having the evidence before us, to find that the referee erred, and that there was sufficient evidence. It is not stated that the conclusion of law was based upon the facts inserted in the case as found by him. Nor is it stated that such facts were all the facts proved to the satisfaction of the referee. How, then, can we say that the referee erred in his conclusions of law? Upon what data could we base such a decision? A party seeking to uphold the report of a referee is entitled to the benefit, not only of the facts actually found by the referee, but also, if necessary to sustain the conclusions of law found by the referee, to all such facts as the evidence tended to prove, and as the referee might have found in his favor. Hence, without examining this case further, there would be abundant reason for affirming the judgment. But if we assume that the facts inserted in the case as found by the referee are all the facts found by him, and upon which he based his conclusions of law, I can still see no reason for disturbing the judgment. The plaintiff was seeking to open two settlements which had been deliberately made, and the burden was upon him to show fraud or mistake. It is not claimed that the facts found by the referee show any fraud, but it is claimed that they show mistake in the last settlement. It was not incumbent upon the defendant to show that this settlement was correctly made, nor to furnish upon this trial the data from which the referee could see how the settlement was made. But it was for the plaintiff, resting upon an allegation of mistake, to show wherein that mistake consisted, to point it out distinctly, and to furnish *Page 436 the data by which it could be corrected. (Bruen v. Hone, 2 Barb., 586; Lockwood v. Thorne, 11 N.Y., 170.) The most that plaintiff can claim is, that it is difficult, perhaps impossible, from the facts found, to see how the parties made the settlement as they did. The case was tried nearly two years after the settlement, and some of the books used at the settlement had been lost or destroyed, and it may be that the parties could not produce upon the trial all the data which they had at the settlement. But if there was any mistake, wherein did it consist? I am unable to answer this question. With the referee, I cannot find sufficient evidence to show it. It is true the referee finds that plaintiff believed that exhibit 13 contained all the assets of the firm and a correct statement of its condition and the amount of profits, and that upon the faith thereof he made the settlement. That exhibit did not contain the real estate and boats, valued at $4,650, but it contained all the other assets, and that is doubtless what the referee meant; and the real estate and boats must have been arranged in some other way. It cannot well be claimed that they were omitted from mistake, as they were entered in the ledger account made up at the same time, a value was placed upon them, and the parties were figuring upon the accounts and negotiating about the settlement many days, and would not be likely to overlook by far the most important item of assets. The result shows, too, that those assets were not left out of the settlement. The following, I think, is as good an account of the assets and liabilities of the firm as can be made from the data furnished by the findings of the referee: When Vernam Chubbuck started business they assumed liabilities of the old firm to the amount of $10,582.80. They took the same amount of assets, as follows: Assets at Mechanicsville ................... $7,438 41 One-half of real estate and boats .......... 2,750 00 Debt against Vernam ........................ 394 39 __________ $10,582 80 ========== *Page 437 The firm then owed these liabilities, and owned these assets, and Vernam owned the other half of the real estate and boats. At the time of the settlement Chubbuck had in the firm, as capital, according to the ledger account .. $2,568 71 And Vernam ............................ $3,834 00 Besides his one-half of the real estate and boats ........................... 2,750 00 _________ 6,584 00 =========== When they settled they had assets, as contained in exhibit 13 .............. $11,394 90 Real estate and boats ................. 4,650 00 __________ $16,044 90 The firm liabilities, as shown by the same exhibit, were, exclusive of the capital .......................... $4,346 93 Chubbuck's capital .................... 2,568 71 Vernam's capital ...................... 6,584 00 __________ 13,499 64 __________ Balance of assets over liabilities ................ $2,545 26 ========== Upon the facts found, I believe there are but two defects, which can be alleged against the foregoing statement. The referee finds, that the firm of Vernam Chubbuck paid Vernam's check to Marshall for $520.39. It is not found, that this was not refunded to the firm by Vernam, or that he still remained indebted to the firm on account of it. And this sum was not charged to Vernam in the ledger account. It may, therefore, have been arranged in some way so that it was not proper to bring it into this settlement. Vernam, also, ought probably to be allowed interest upon the value of his half of the real estate and boats put in by him as capital for upward of a year. But in any event, it is clear from the foregoing statement, that the real estate and boats could not have been left out of the settlement by mistake, and it is quite probable that there was no mistake at all. After looking over the account, and negotiating about the settlement for many days, the defendant *Page 438 offered to give the plaintiff his capital, and $1,150 for his share of profits, and take all the assets, and assume all the liabilities, or he would accept the same offer if made to him by the plaintiff. And the plaintiff accepted his offer, and the settlement was closed. I can see no sufficient reason for opening this settlement, and upon all the grounds above stated, I am for affirming the judgment.