Ganaway v. Miller

The opinion of the court was deli vered- by Hebard, J. The first objection to a judgment upon the report is, that the auditor finds that each party has received bis share of the produce of the farm, and that the indebtedness found by the auditor is not a proper subject of accounting. The declaration charges the defendant as standing in such a relation to the plaintiff as, if true, would, under our statute, which is similar in its provisions to the statute of the 4th Anne, hold him to an accounting; and as the expenses of keeping the team, and furnishing tools and seed, would necessarily constitute one of the elements entering into the general result of interest or profits to be divided between the parties, they may well be included in any accounting which shall embrace such interest or profits. But as the declaration, in an action under the first section of our statute “of account,” should set forth, distinctly, all the grounds on which the plaintiff claims to hold the defendant to an accounting, and as, in this case, the obligation of the defendant to account for half the seed-grain was not claimed in the declaration, it cannot be recovered in this action. And, besides, it having been found by the auditor that the produce had been shared equally, the presumption would be that the seed-grain had been accounted for in the division. The expense of keeping the team and furnishing the tools being a proper subject of accounting between these parties, the question arises — shall the defendant be held to account [155] for a balance existing against him on the 18th of November, 1841 ? The auditor has found that the plaintiff left the premises on that day without the license of the defendant, and that the contract between the parties was for the occupancy of the premises by the plaintiff for a year, terminating four months after that time, namely on the 20th of March, 1842. It does not follow that, because there was a balance against the defendant at the time of the plaintiff’s leaving the farm, theré would have been, at the termination of the period provided in the contract for his occupancy of it. No balance can be recovered which does not embrace the transactions between the parties under the contract for the entire year. And, besides, it is not for the plaintiff to claim a fulfilment of the contract when he was the first to disregard it. It is well settled that when one party has partly fulfiled a contract and refuses, without good cause, to complete it, he cannot recover for what he has done. The judgment of the county court is affirmed.