Sears v. Munson

Dillon, J. i. case approved. A majority of the court is of the opinion, that the former decision in this case (reported in 12 Iowa, 172) concludes the parties on the question of partnership and as to the rights of the parties, so far as then before the court, respecting the Munson farm. Concerning the question of partnership, we do not see how its determination, one way or the other, would eifect any material change in the result. It is more speculative than practical, and no injustice is done to the parties, or any of them, by the former opinion. Concerning the question as respects the Munson farm, the referee heard the parties anew upon the merits, and arrived at the same result as that expressed by this court, in its opinion (12 Iowa, 179, 180). Upon an examination of the evidence, we would still be satisfied with this conclusion, if this question were not foreclosed by the previous decision of this court. So that practically, the material questions remaining, relate to the state of the accounts between the parties. [388] It is not proposed, nor indeed is it practicable within any reasonable limits to enter upon a minute and detailed examination of the lengthy accounts between the parties, extending through the long period embraced between a. d. 1817 and 1865. We limit ourselves to a notice of the objections taken by the parties to the principles adopted by the referee in stating the account. And first we notice the errors insisted upon by the counsel for the Munsons and Sellew. The first two points in their printed argument relate to the alleged partnership. This question is disposed of by what is above said on that subject. 2. tenants in Interest on advances. It is next objected that all allowances to Sears, for interest, are erroneous. We think the allowance, under circumstances of the case, to be correct, so far as Sears made advances over and above his proportion. The improvements were undertaken by Sears, at the request of Munson, and upon the express understanding that the Munsons should furnish their share of the cost of the same. Munson failed to do so. This is substantially admitted in his letter to Sears, of August 12,1818. He deplores his own want of means, urges the early completion of the mill, and says to Sears, “ if you (Sears), out of your greater means can push the matter through, 1 will see that you lose nothing for advancing any thing on my account.” This would justify an allowance of interest on money furnished or advanced by Sears, made beyond his proportion. The referee did not compound interest; but pursued the course which, assuming interest to be chargeable, was the proper one. Where the rents and profits received by Sears were sufficient to pay the interest on his advances, they were first applied to extinguish the interest; when not sufficient for this purpose, the balance of interest [389] over the amount received was reserved, to be added to the final balance. 3. — com-services-1 or after death of co-tenant, It is urged that Sears, whether to be regarded as a partner, a tenant in common, or a vendor, is not entitled to compensation for his services. As such merely, he might not, as a matter of law be ° , _ . . T entitled to pay. Levi v. Karrick, 13 Iowa, 344. But here the circumstances are peculiar. Sears came to Iowa, especially at the request of Munson, to superintend the building and management of the mill. S. B. Munson remained behind devoting his time to his own business. Harvey came, and died soon .after. S. B. Munson says he thought Harvey’s services would set oif Sears’, and that he would arrange with Harvey for his (S. B.’s) share. But Harvey died, and Sears still continued his services, and we find in the evidence sufficient to satisfy us that there was a definite wndersiandi/ng or agreement that Sears should be paid. The law would fix the amount at what is reasonable. In considering all the circumstances of this case we think the amount allowed Sears by the referee is too large by the sum of $561.93. The point made, that after the death of Harvey, Sears could not go on and complete the improvements commenced under the contract of November 13, 1847, seems to have been ruled against the defendants on the former appeal. At all events the heirs of Harvey take under that contract just as it reads. The improvements were commenced when Harvey was alive, and completed after his death, but in pursuance of the contract and plan. Under the circumstances of this case, which we need not stop to detail more at length, it would be inequitable to disallow Sears for advances made to complete the mill, and to carry out the contract and execute the intention of the parties. [390] 4. notice: arising from possession, [389] The former opinion settles the question as to the [390] “ Munson farm,” so termed, between Sears and tbe Mun-sons. Sellew purchased when Sears was in _ . _ , 7 , . A , actual possession and had constructive, 11 not actual, notice of his rights. Ns to Sears’ appeal. We are satisfied with the estimate of the referee as to the cost of the mill property and with his action in disallowing the $462.15, of which complaint is made. Sears, claiming compensation for his services, and being allowed therefor, is, in our opinion, justly charged by the referee with the income and profits of the property, both when he used and operated the mill and property himself, and when he rented it to others. In disposing of the numerous questions in this cause, as it might seem, somewhat briefly, we wish to observe that an. attentive examination of the record has abundantly satisfied us of the minute, patient and conscientious care and ability with which the cause was investigated by the referee, and of the general equity, fairness and good judgment which characterize his findings. It is useless, therefore, to dwell more at length than we have done, upon the items of the accounts of the respective parties. With the deduction of $561.93, before alluded to, from the sum found by the referee, $2,335.70, there is due Sears, the sum of $1,773.77. With this modification the decree below is affirmed. Costs of appeal, including allowance to a referee appointed by this court, will be paid by Sears. Modified and affirmed.