Grace v. Newbre

Lyon, J. We are of the opinion that the defendant should have been allowed to show that the account in the partnership books contained errors, and that items were omitted from it which ought to have been included in it; which errors and omissions were against the defendant. [24] On tbe principle tbat be wbo asks equity must do equity, tbe plaintiff cannot be allowed to open tbe account and surcharge it, by reason of errors committed against bis interest, without at tbe same time being held to corrections of tbe account where errors have intervened in stating it, which are in bis favor and against tbe interest of tbe other party thereto. Floyd v. Priester, 8 Rich. Eq., 248. But it is argued tbat tbe evidence was not admissible under tbe answer, because tbe answer denied tbe accounting; and it is said tbat a pleading which denies tbe stating of an account, and then alleges errors in tbe account stated, tbe existence of which is denied, is an inconsistent pleading, and ought not to, be tolerated or permitted; and tbat tbe defendant cannot be beard to allege errors in tbe account, until be admits tbat an account has been stated. If there is any rule of pleading in force in this state, which prohibits a defendant from setting up inconsistent defenses in bis answer, then we are of tbe opinion tbat tbe answer of tbe defendant, as be proposed to amend it, does not contain inconsistent defenses. Tbe substance of it is, first, tbat tbe parties did not state an account; but, should it be held tbat tbe transactions between them amounted to tbe stating of an account, then, secondly, tbat tbe account, by reason of mistakes and errors therein, was stated at too large an amount against tbe defendant. Tbe defendant may honestly deny, and doubtless has honestly denied, tbat be was ever a party to tbe stating of an account with tbe plaintiff. Notwithstanding the finding of tbe county court, be probably is not yet convinced tbat he did so. But that issue having been determined against him, we know of no rule of law which prohibits him from impeaching tbat account for fraud or mistake, merely because be has denied tbat it was ever stated. Tbe case of Willard v. Giles, 24 Wis., 319, is precisely in point. This court there held tbat in an action for tbe wrongful conversion of certain aboses in action, which, it is [25] alleged, were left with, the defendant as collateral security, a denial that the defendant ever received them does not preclude the defense that they were lost by the defendant without his fault. The original answer alleged errors in the partnership accounts as contained in the books, and omissions therefrom, to the prejudice of the defendant. The proofs showed that the account stated was made up of the accounts contained in such books. It would seem, therefore, that the original answer alleged, substantially, that if any account was stated, the same was erroneous in the particulars therein mentioned. If such was the effect of the averments contained in the answer, when taken in connection with the evidence introduced by the plaintiff, it would seem that the original answer was sufficient to permit the defendant to surcharge or falsify the account It has been held that under a plea of non assumpsit to a count in the declaration on an account stated, the defendant may show that the account is incorrect. Thomas v. Hawkes, 8 M. & W., 140. But if the original answer was not sufficient to give the defendant the right to surcharge or falsify the account, then we think the defendant should have been allowed to make the proposed amendment thereto. Such amendment does not change the nature of the-defense, and we cannot perceive how the opposite party could possibly be misled by it. It is objected that the proposed amendment was not verified. It was not objected to or rejected for that reason, so far as appears by the case; and it is fair to presume that had it been allowed, the answer would have been amended, and the amended answer verified at once. This is understood to be the usual practice at the circuit where a verified pleading is amended upon the trial, when the amendment does not result in a continuance of the cause. A question of costs has been made, or attempted to be made, on this appeal. It is, whether the party recovering costs in an [26] equitable action is limited to twenty-five dollars in respect to those costs which are given by sec. 41, chap. 133 of the revised statutes, and which are usually denominated “ attorney’s fees.” This section of the statutes contained no limitation of the amount of costs which might have been taxed by virtue of it in any action. By the laws of 1859, chap. 200, the following proviso was added to the section: “ Provided, The fees shall not in any one case exceed twenty-five dollars, and in actions on contract, where the amount recovered is less than two hundred dollars, shall not exceed fifteen dollars.” By this enactment the recovery of costs by the. prevailing party under sec. 41, chap. 133, R. S., was limited to twenty-five dollars in all cases, whether the action was at law or in equity; and in a class of actions the recovery was limited to fifteen dollars. The legislature, in 1864, again amended sec. 41 aforesaid, by adding thereto the following proviso: “ Provided, That in actions at law on contract, the fees shall not in any case exceed twenty-five dollars, and when the sum recovered is less, than two hundred dollars, the same shall not exceed fifteen dollars.” Laws of 1864, chap. 402. Sec. 2 of this act repeals the law of 1859, although by its title it purports only to amend sec. 41. The only limitations prescribed by the law of 1864, relate to “ actions at law upon contract. ” Equitable actions are subject to no limitation, and the parties recovering costs therein may lawfully recover full costs, without reference to the amount of the judgment. In the view which we have taken of this case, it was not absolutely necessary to decide this question of costs, and we have not inquired whether the question could bé propei-ly raised on this appeal, or, if so, whether the defendant has saved his right to have the taxation reviewed. But we have decided the question because it is one of general interest to (the profession, and because we know that it is desirable that it should be definitely settled by an adjudication of this court. Because the defendant was not allowed upon the trial to in [27] troduce testimony tending to show that there were errors and mistakes against Mm in the account stated, the judgment of the county court must be reversed, and the case remanded for further proceedings in accordance with this opimon. By the Court. — So ordered. A motion for a rehearing was denied.