Young v. Clute

By the Court, Hawley, C. J.: On the eighth day of September, A. d. 1873, the copartnership which had for a period of nearly three j-ears previously existed between the plaintiff and defendant as equal copartners in the business of merchandising at Pioehe, in Lincoln county, Nevada, under the firm name of Clute & Young, was dissolved by mutual consent. The deféndant took all the real estate and personal property, goods, wares and merchandise of the firm at the value named in the inventory, to wit: thirty-three thousand two hundred and six dollars and thirty-seven cents. On the twentieth day of October, A. d. 1873, when the invoice was completed, and the value of the property ascertained, a statement was prepared showing the amount of tlio indebtedness of the firm to certain parties in the State of California from whom the firm had bought goods, together with certain accounts which the firm owed in Pioche, Nevada, in all amounting to the sum of nine thousand five hundred and twelve dollars and twenty-nine cents, which indebtedness the defendant assumed and agreed to pay; and this amount, together with plaintiff’s personal indebtedness [35] to the firm of six hundred and sixteen dollars and eleven cents, was by the agreement of the respective parties deducted from the total value of the property, and the defendant then paid to plaintiff one-half of the remainder. The plaintiff executed and delivered to defendant a deed of all his right, title and interest in the real estate, and surrendered up and delivered to defendant the possession of all his right, title and interest in the stock of goods, wares and merchandise, and all the personal property belonging to or owned by the firm, except the money on hand and the accounts due and owing to the firm. The indebtedness of the firm in connection with their business at Pioche, not included in the list of nine thousand five hundred and twelve dollars and twenty-nine cents, was to be paid out of the accounts due the firm when collected. This suit was commenced on the fifth day of March, A. d. 1874, to compel an accounting of the copartnership transactions after the dissolution. The court, after continuing the cause for the term, vacated the order of continuance and referred the cause to a referee, “to report the testimony, findings of fact, conclusions of law and submit a judgment.” After the cause was referred the hearing was continued by the consent of the respective parties from time to time, and w'as not finally submitted to the referee until after the expiration of the term of court at w'hich the order of reference was made. The referee reported a judgment in favor of the plaintiff for one thousand four hundred and fifty-ono dollars and forty-two cents, with costs of suit taxed at five hundred and thirty-five dollars and thirty-five cents, which was entered as the judgment of the court. The defendant moved for a new trial, which was refused. This appeal is taken from the judgmeDt and also from the order overruling defendant’s motion for a new trial. First. It is claimed by appellant that the court erred in vacating the order of continuance, and that the referee lost jurisdiction of the case by the lapse of the term of court at which he was appointed. Neither of these positions are [36] maintainable. It was proper for the court, upon good cause shown, in the exercise of its sound discretion, to vacate the order of continuance and to refer the cause. After the reference was made the referee had the same power to continue the hearing, from time to time, as the court would have had if the case had been tried before it without a jury. Second. It is contended by appellant that the statement of the indebtedness of nine thousand five hundred and twelve dollars and twenty-nine cents, which he admits he assumed and agreed to pay, was not a complete list of the indebtedness of the firm; that several of the accounts contained therein were not accurately made out, and that upon settlemen t thereof, he was compelled to pay a greater sum than was therein specified. He denies that the list when made out was agreed to as correct, and, upon this point there is a direct conflict of testimony. He claims that the referee erred in not allowing him all the various items and accounts which he claimed he had paid for the firm, in excess of the sum of nine thousand five hundred and twelve dollars and twenty-nine cents. ^ He prepared a statement showing that he had paid Ararious accounts against the firm in excess of said sum, amounting in the aggregate to the sum of. four thousand three hundred and fourteen dollars and thirty-two cents, and of this amount the referee in a general finding allowed him the sum of one thousand and ninety-one dollars and fourteen cents. We think there is such a conflict of evidence as to the amount of the accounts actually paid by appellants as to fully warrant the conclusion reached by the referee. But, independent of this question, it is sufficient for us to state that it is impossible from the findings of the referee to designate Avith any degree of certainty the particular items of the accounts alloAved by him in making up the total of one thousand and ninety-one dollars and fourteen cents, and hence it is impossible for us to determine what particular accounts Avere disallowed by him, except those mentioned in his report and referred to in the opinion of the court overruling defendant’s motion for a neAv trial. If appellant desired to have the several accounts paid out by him reviewed by this [37] court, lie ought to have asked for a specific finding containing an itemized statement of the accounts allowed, and also a statement of the particular accounts disallowed by the referee. Third. Did the referee err in refusing to allow appellant the sum of six hundred and eighty-eight'dollars and forty-five cents, the amount paid for taxes levied upon the property of the firm of Clute & Young, for the year 1873? This is the only difficult question presented in this case. The property was assessed and taxes levied prior to the sale of Young’s interest to Clute. It is not alleged in the complaint that Clute assumed or agreed to pay any indebtedness of the firm not included in the list of nine thousand five hundred and twelve dollars and twenty-nine cents; nor is it averred that Clute assumed or agreed to pay any indebtedness or liability of the firm in the State of Nevada. The allegations of the complaint are that defendant Clute assumed and agreed to pay ££ all debts contracted by, and due or owing from said firm to any and all parties or firms in San Francisco, and all debts due or owing from said firm to said defendant.” Nothing was said about the taxes at the time of the dissolution. From the pleadings and the proofs, we think the true intent and meaning of the agreement of the copartners at the time of the dissolution was that all the indebtedness and liability of the firm in the State of Nevada, not included in the list of nine thousand five hundred and twelve dollars and twenty-nine cents, was to be paid out of money collected from the outstanding copartnership accounts; and, as the tax was an existing liability against the firm at the time of the dissolution; and was not included in the list of indebtedness which Clute assumed and agreed to pay, it follows that the referee erred in refusing to allow this account. This, however, is not such an error as to call for a reversal of the case. The judgment can be modified so as to conform to the views herein expressed. Fourth. By the provisions of our statute the allowance or disallowance of costs in actions like this is left to the discretion of the court. (1 Comp. L., 1539,) and from an ex38 animation of tlie testimony in this case we are satisfied that the court did not abuse its discretion in allowing costs in favor of the plaintiff. The judgment of the district court is modified by reducing the amount of the judgment to the sum of one thousand on© hundred and seven dollars and twenty cents, and costs. Appellant to recover the costs of this appeal.