Hopley v. Wakefield

Day, J. Sim?: settleraent of acdene^considered-I. The transactions between these parties commenced in the fall of 1874, and consisted in the buying, feeding and shipping of cattle and hogs under a parol contract of partnership. They kept no books, r ^ an<^ ^ *s now yery f° ascertain the exact state of their accounts. As is usual when business is conducted in such a loose manner, they differ very widely as to their respective rights. The plaintiff claims that there is due him upon the notes sued on something oyer $3,000, whilst the defendant’s attorneys insist there is a balance due him of over $1,200. On the 22d day of January, 1878, the plaintiff and the defendant agreed to submit to arbitrators all their matters of partnership and partnership accounts whilst in partnership buying, feeding, shipping and selling hogs and cattle during the years 1876 and 1877. This submission of itself raises a presumption that all matters of partnership account between the parties prior to the year 1876 had theretofore been settled. The burden of removing this presumption is upon the defendant. He has not done this. Hpon- the contrary we cannot find from the evidence that anything was due from the plaintiff to the defendant prior to the time that the second venture was entered upon, about the 1st of September, 1876. II. On the 24th day of January, 1878, the arbitrators filed their award, finding that plaintiff should pay defendant $436. Afterward judgment was entered in the Oass District Court confirming said award, and on the 10th day of April, 1877, the plaintiff paid the judgment by entering a credit upon the note first maturing for the sum of $436.61. The defendant claims that the plaintiff falsely reported to the arbitrators the prices for which the stock was sold, and [714] that he thus fraudulently procured the award. The award must stand unless fraud in the procuring of it be clearly established. The testimony upon this branch of the case is very, meager, and, in our opinion, it fails to establish the fraud alleged. The defendant testifies: “From examination'of books of commission men in Chicago in April, 1878, and from Darlington’s deposition filed herein, I have found that plaintiff reported several bunches of stock shipped by us, but in his name, as selling for sums less than those actually received by him.” The defendant then proceeds to mention five sales of cattle as reported in the aggregate at $335.86 less than the amount actually received. The deposition of Darlington alluded to has reference to two sales of hogs, and does not contain any of the items referred to by defendant. All his information iipon the subject must, therefore, have been derived from an examination of the books of commission men in Chicago. The books are not in evidence, and this testimony is hearsay, and incompetent. The award must be regarded as a final adjustment of the rights of the parties. We cannot find from the evidence that the defendant is entitled to any more credits upon the notes than those entered upon them. Affirmed.