Knerr v. Hoffman

The opinion of the court was delivered, March 31st 1870, by Sharswood, J. The nine specifications of error may be most advantageously considered by classifying them. The 1st, 3d and 5th raise the question whether the claim or demand by Diefenderfer, the original defendant, against Knerr, was the subject of an attachment in execution under the Act of Assembly of June 16th 1836, § 35, Pamph. L. 767. According to the testimony of Diefenderfer himself, who was examined as a witness for the execution-creditor, he was engaged by Knerr to superintend the raising of ore for “ half the profits and two dollars a day.” By the 5th section of the Act of April 15th 1845, Pamph. L. 460, it is provided “that the wages of any laborers or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer.” As wages or salary cannot be attached, if anything was the subject of the process it was the balance of a partnership settlement. If such a balance be struck between the partners, assumpsit will lie; but if not, account render is the only proper form of action, unless indeed it be a partnership in one single transaction: Ozeas v. Johnson, 1 Binney 191; Andrews v. Allen, 9 S. & R. 241; Van Amringe v. [129] Ellmaker, 4 Barr 281; Brubaker v. Johnson, 3 Penna. R. 295; Galbreath v. Moore, 2 Watts 86. Now although the word “ debt” in the Act of 1836 has received a very wide interpretation so as to include unliquidated damages in actions in form ex contractu, as in Girard Fire and Marine Insurance Co. v. Field, 9 Wright 129, yet it has never been held to extend to a claim for a balance arising upon an unsettled partnership account. The learned judge below refers to Strock v. Little, 9 Wright 416, as deciding the contrary. But it was not there held that the balance of an unsettled partnership could be attached, but merely that an action of account render could be commenced between the partners by the process of foreign attachment. When account render is the only form of action between the parties, it is very plain that there is no debt which can be attached. In such an action the first judgment is properly quod computet, and then either by auditors or by a jury in the sound discretion of the court, an account is settled, and a balance ascertained. The Act of April 4th 1831, Pamph. L. 492, invested the jury with full power to settle the account of the parties, with a necessary proviso that the court or a judge might make “ such orders upon any of the parties, in relation to books, documents or papers, as may appear to be necessary, for a full and equitable adjustment of the controversy.” After a few years’ experience it became evident that partnership accounts in nine cases out of ten could not be settled by a jury trial, and the legislature interposed by the 18th section of the Act of October 13th 1840, Pamph. L. 1841, p. 7, leaving it to the discretion of the court “to appoint auditors and proceed according to the practices and usages of the common law or direct a jury to be impannelled to settle the accounts of the parties and find the balance due the plaintiff or defendant.” Neither of these acts has any application to a proceeding by attachment. Indeed in a foreign attachment, to which this process of execution is likened, to the scire facias against the garnishee, the non-resident defendant who is the partner between whom and the garnishee the account is to be settled, is not a party; nor in an attachment of execution is the defendant, if a non-resident, necessarily a party. It would be entirely intolerable to leave a jury to settle a long and complicated partnership account of many years’ standing — occupying as it necessarily must many days or even weeks — the tribunal being altogether incompetent to that careful and full examination of books, correspondence and papers, which is required of auditors at common, law or masters in chancery. Nor is the execution-creditor without an appropriate remedy. Upon a fieri facias he can sell all the right, title and interest of the defendant in the partnership, and the sheriff’s vendee can institute either an action of account render or file a bill in equity. But there was evidence from which the. jury might have infer [130] red, that the account in this case had been settled between the parties, and a balance struck. Diefenderfer testified to having gone over the books with Knerr, and added, “ Knerr and I went to Squire Kemmerer. Knerr asked the squire for advice; he stated that there was an attachment laid on my money that I had there ; Kemmerer said how much it was; Knerr said some$620.” In the assignments of error, under consideration, the plaintiff complains of the refusal of the court to charge, that there was no evidence of any sum in the hands of Knerr, which was the subject of attachment; but here was evidence of an admitted balance which the jury might well have inferred had been struck between the parties, and such a balance is a debt, for which ah action of assumpsit may be maintained without proof of an express promise, as was held in Van Amringe v. Ellmaker, 4 Barr 281, and therefore properly attachable in execution. It is true, that it does not appear from the copy of the charge filed of record, that the case was put to the jury on that ground, but there is no assignment of error, which applies to that part of the charge, and we see rio reason to notice it, where substantial justice has been ■done by the verdict. The 2d and 6th assignments, relate to the effect of the instrument of April 12th 1869, executed by the plaintiffs, under seal, and given in evidence, upon the competency of Diefenderfer as a witness, and upon the right of recovery. It was a covenant to.look only to the pending attachment for payment of the judgment, and upon its final determination to satisfy the same. It was not an absolute release, and could not be set up in this proceeding as such, though it might in any other. It was in no sense an assignment of the claim ■ by Diefenderfer; for the failure of the plaintiff to recover in the attachment, would have been no bar to an action or bill by him against Knerr. Under this covenant Diefenderfer stood indifferent between the parties; indeed, he was testifying against his own interest, for a judgment for the plaintiffs would have been a bar at least pro tanto to an action by him against the garnishee. These assignments of error are therefore not sustained. The 7th, 8th and 9th assignments are to portions of the opinion of the court delivered on entering judgment on the special verdict, and the reserved points. "We have before us only the question whether that judgment was right, not whether the reasons for it -were sound. Many a right decision has been made for wrong reasons. What is termed the special verdict, was that the jury found the sum due by the garnishee — adding “notwages.” This was merely surplusage. It may sometimes be useful for a jury to indicate how they find particular facts,-but in this instance it was unnecessary, as they could not, under the instructions they received, have found for the plaintiff at all, unless they had found [131] that the debt, attached was not for wages. The judgment, upon the points properly reserved, was, as we have seen, right. The only remaining assignment is the 4th, that the court erred in reserving the question^of the competency of Diefenderfer as a, witness. This was undoubtedly an. error, but a harmless one, for the judgment is not entered non obstante veredicto. That judgment clearly could not have been entered upon such a reservation, unless indeed the testimony of the witness objected to had been the only evidence in the cause. Judgment affirmed.