Davenport v. Schutt

Notebook, J. I. One H. C. Wales was made a party defendant. The petition charged that he was a partner of defendant, Seliutt, in the business transacted for plaintiff. The referee found that there was no such partnership, and no finding was made against him. No exceptions were taken to this finding, and the controversy now is between the plaintiff and defendant, Schutt. II. It will be observed, from a reading of the foregoing statement of the case, that the evidence upon which the report of the referee was based is not presented for our consideration. The whole case turns upon the proper construction to be given to the report of the referee. The arguments of counsel for the respective parties, with characteristic ability, cover every conceivable phase of the question presented. To discuss the numerous points made by counsel, and follow the arguments step by step, we do not regard as necessary to a proper determination of the case. It may be proper to say, however, that we have been very greatly aided by counsel in arriving [513] at what we believe to be a just determination of the controversy. We will, therefore, state the conclusion to which we have arrived, and the reasons therefor, as briefly as may be without a statement of the points urged in argument. j J6Vjmca0jBi. proof"11 accounting. III. The meaning and intent of the referee should be gathered from the whole report taken together and not from any one part or paragraph. It should he construed by language, and if that be of doubtful meaning the attendant circumstances should be taken into consideration. The report states that: “Defendant testifies, generally, that he paid and disposed of'all sums realized by him from plaintiff’s notes as directed by the plaintiff, but in many instances is unable to state to whom, when, and for what paid, and some of the alleged payments were made by leaving money with others, in envelopes, for the plaintiff to call and receive. “While no sufficient reason is shown to doubt the veracity of defendant, Scliutt, and credit is usually given him where he professes to recollect a particular transaction or fact, I hold it to be an insufficient accounting, in this case, merely to testify that money was paid to or for the plaintiff’s use, with no specifications given, and nothing to show that plaintiff actually received the money or credit, and in such case where I was unable to find anything in addition, tending to show it probable that plaintiff received the money or credit, it has been disallowed to the defendant. “ If, in the opinion of the court, this is a mistaken Anew, then judgment should be given in favor of the defendant for costs.” It is evident that the referee reserved a question for the determination of the court. If it be a mere question of fact Ave do not think such reservation competent or proper. If, for instance, the referee had reserved for the determination of the court the question as to Avhether the statement thus generally testified to by defendant was true or false, this would be no determination by the referee of such question of fact, and the result Avould have been no trial before, the referee. But Ave think it is competent, for the referee to report to the court his ruling upon a question of laiv, and state that if such [514] ruling is correct then the defendant is liable, but if in the opinion of the court such ruling is incorrect, the defendant is not liable; and that upon such report being made the court may determine the question of law, and render judgment on the report in conformity with such determination. As we understand the report, this is precisely what was done by the referee and the court below. Defendant testified, generally, that he had paid and disposed of all sums realized by him from plaintiff’s notes as directed by the plaintiff, but in many instances was unable to state particulars as to persons to whom and for what paid. This the referee held to- be an insufficient accounting, not because defendant was not entitled to credit as a witness, and not because the testimony of defendant was incompetent evidence, but because it was, in law, an insufficient accounting in this character of case, unless the testimony of defendant was in some manner corroborated by other evidence. There certainly could have been no evidence of a negative character, showing that the defendant did not in fact pay over all sums due as directed by plaintiff^ or the referee would not by his report have submitted the question to the court for its determination, with the recommendation that, if mistaken as to the sufficiency of the accounting, judgment should be given for defendant. IV. The subsequent findings of fact by the referee are all based upon the idea that the view taken by him of the legal sufficiency of the evidence was correct. If found to be incorrect, the report must be held to conclude with that part of it which recommends a judgment for defendant. V. The question remains whether there' is anything in the nature of the case which required a more particular accounting, upon the part of defendant, than the general statement made under oath as found by the referee. The referee seems to have thought a more particular accounting necessary, from the fact that he says: “I hold it to be an insufficient accounting m this case? It is true -that the petition entitles the cause as an equitable action, and it asks that an account be taken; but we think the transactions between the parties, as found by the referee, did not create such relations of confidence or trust [515] as required the defendant to keep an account, and be held responsible for failure to show an itemized statement of the transactions between the parties. The parties as to these transactions stood upon equal ground. The plaintiff was a borrower and personally in need of the immediate use of the proceeds of the notes discounted for him. There was no more obligation upon the defendant to keep books of account relating to this business than there was upon plaintiff. It is not like a case where money is intrusted to an agent to loan at his discretion, and after a time an accounting is required by the principal. In short, we think the case is not of that character that the rendering of an account upon the trial was a duty wliich one party was required to perform rather than the other. Believing that the character of the evidence to maintain the defense was not other or different than that required in any ordinary action, we hold the ruling of the court below was correct. Arrirmed.