White v. Magann

Cole, 0. J. It is objected, on the part of defendants, that the referee exceeded his authority in attempting to hear, try, and decide all questions of law and fact involved in the issue. It is said that by the order of reference the referee was only authorized to take the testimony necessary to state a true and correct account of the partnership affairs, so far as they were involved in the action, and to state a true and correct account thereof, showing the interests of the parties, and to report the testimony and account to the court. It appears to us that this is precisely what the referee did do. True, he made certain findings of fact, but these really amount to no more than a statement of the basis of the account. As said by plaintiff’s counsel, they are explanatory of the account which he was required to state, and can do no harm even if impertinent. The record shows that the defendant’s counsel moved to set aside the report because there were no proper findings of fact or conclusions of law, thus impeaching the action of the referee because he had not gone far enough in his report. This [90] motion was met by one on the other side to confirm the report. On the hearing of these motions the court confirmed the report, and adjudged the amount due the plaintiff by each defendant. The court must be deemed to have been satisfied with the findings of the referee, and to have adopted them. In view of what is set forth in the record the position that the cause was never tried by the court below, that the evidence was never considered or passed upon, nor the judicial mind ever called into action upon the case, is quite untenable. Besides, we have examined the- record, and fail to find that any objection was taken in the court below that the referee exceeded his authority in reporting to the court his findings of fact; but, on the contrary, the objection was that he had not made sufficient findings of fact and conclusions of law. The objection now made seems to be an after-thought. Nor was the court requested to make formal findings and file them. Under the circumstances we must assume that the court, being satisfied with the findings of the referee, adopted them as its own. As this was an equity case, the omission of the court to make and file findings of fact and conclusions of law would be no ground for reversing the judgment. Willer v. Bergenthal, 50 Wis. 474. This brings us to the inquiry whether the account is stated upon the correct basis. On this branch of the case it is said by the counsel for the defendants that the plaintiff is not entitled to any part of the collections which were made prior to May 2, 1878, and that they should not enter into the accounting. The plaintiff’s title or interest to one fourth of the accounts is derived from Chittenden. He stands in Chittenden’s shoes, and has the same rights which Chittenden would have had if he had not parted with his interest in all “outstanding book accounts” of the News establishment. When the News and Oommereial Times were consolidated, the former, with all its type, presses, [91] machinery, office furniture, and “outstanding book accounts,” etc., were estimated at $15,000; that of the Times establishment at $5,000. Each partner of the firm then formed owned an equal one-fourth of the partnership property and effects after this consolidation. It was provided in the articles of copartnership that the new firm, when formed, should pay, out of the outstanding and uncollected accounts of the News establishment, all the then indebtedness of the firms of Magann & Keefe, and Magann, Keefe & Aldrich. But, subject to this charge, each partner was entitled to one fourth of all the outstanding book accounts of the News establishment. If one of the partners had collected an account which was not credited on the partnership books, it was a debt due the firm from such partner; and on a final settlement of the partnership affairs these balances due the firm by the partners would enter into the accounting. That is to say, the articles provide, as we construe them, that each partner shall have a one-fourth of all outstanding accounts as they appeared on the books of the News establishment which had not been balanced by credits on the 2d of May, 1818, when the consolidation was made. So that if Magem% had collected an account prior to that time, while it was not an outstanding one as between the firm and the debtor, it was still a debt due the firm from him. Chittenden had a right to assume that the books of the News establishment were substantially correct, and showed what accounts were due the firm. He had the right to act on that assumption, and doubtless did act upon it. Suppose, for instance, the books of the News establishment showed, at the time, outstanding accounts to the amount of $5,000, but one of the partners had in fact collected one half of them, but had made no credits on the firm books nor charged himself with the sums collected: is it a reasonable conclusion from all the facts that this debt, due the firm from such partner, was not a claim which the partner [92] of the new firm had an interest in, and a right to insist should enter into the final accounting ? The answer to this question seems to us plain. Consequently we think the plaintiff is clearly entitled to a one-fourth of all outstanding accounts as they appeared on the books of the Neivs establishment, subject to the charge we have indicated, though Magcmm, had collected some of them prior to May 2, 1818; and before the referee it was expressly “admitted by both parties that all accounts, up to and including June 12, 1877, as shown in the ledger, are accounts of the Milwaukee News Company, and all accounts from June 12, 1877, to December 15, 1879, inclusive, are the accounts in controversy.” In the light of this admission all argu ment upon the point should close, even if there were any doubt as to the correctness of the views which we have expressed. We have but very little to say upon the details of the account as stated. The defendant Magann contests many items for which he is held accountable. The evidence in respect to these disputed items is quite conflicting. ' By the copartnership agreement it was made the duty of Magann, as the business manager, to keep, or cause to be kept, in a correct and reliable manner, a set of books which would show at once the entire business transactions, and every dollar received, what it was for, and when and for what it was paid out. This he did not do; and if he suffers by being charged with items he ought not to pay, it will be in consequence of his neglecting this duty. Confessedly the books do not show the true condition of the accounts or business transactions. If they did, doubt as to many of the disputed items would be removed. The $500 received in the fall of 1878 from Mr. Black was never entered upon the firm books, though the evidence is entirely conclusive that it was not a personal matter, but belonged to the firm. This same remark might be made as to other disputed items in the [93] account. But after an examination of all the eAddence in the printed case we see no reason for disturbing the account as stated by the referee and confirmed by the court beloAv. By the Coxurt.— The judgment of the county court is affirmed.