Burton v. Maltby

Garland, J. delivered the opinion of the court. The plaintiff alleges he and defendant, in the month of January, 1837, entered into partnership for the purpose of carrying on the boat breaking and lumber business in the cities ’of New Orleans and Lafayette. William Granger was for a few months connected with them, but withdrew, and they carried on the business until about the 15th of September, in the same year, when they dissolved their connection. This suit is to recover a balance which the plaintiff .says the defendant owes him upon a full settlement of their accounts, also the sum pf $ 155, which he says is the half of a debt of $311 which the firm owed a Mrs. Winters, whom the plaintiff afterwards married, his own half being extinguished by the marriage and confusion, or in some other mode not exactly shown to us. The defendant gave a general denial to the whole demand; there was judgment against him for four hundred and fifty-four dollars and sixty cents and he appealed. It does not appear what capital either partner brought into the concern, but probably none ; they had a clerk who kept a book, which is produced, wherein there are but some memorandums and two accounts that are material in this controversy, one in the name of the plaintiff and the other in that of [533] the defendant. Their business with most other persons appears to have been conducted on the cash system. On this book. the plaintiff has credit for $2119 01, and is charged as debtor $1846 56, which leaves him a creditor of the firm $272 45. The defendant, on his account, is credited with the sum of $1314 43, and charged with $680 93, which leaves him a creditor of the firm $633 50. The plaintiff in his statement of the accounts sets forth all this matter, then deducts his balance of $272 45 from the defendant’s balance of $633 50, which leaves a balance of $361 04 in favor of defendant; and this the plaintiff divides into halves,'appropriating one to himself. This may accord with some process of arithmetic, but it is not according to the old rules by which we were taught. They induce us to believe that the plaintiff, instead of taking this $180 52 to himself, ought to allow it to the defendant. The balance to the credit of a partner on his. individual account, over and above the debit, should belong to ■ him exclusively, and not one half of it go to the other partner. Where a witness swears that what is written in a certain document is correct, it does not imply that it contains a full statement ol all .the affairs of the partnership; as he does not swear that it contains every thing relating to the partnership affairs. The account then goes on to charge the defendant with $635 12J, the one half of a quantity of lumber he took after the dissolution of the partnership, from the triangular yard, which appears correct, as both Richardson and Ives swear he took it; but from this sum the plaintiff only deducts $180 52, when we think he ought to have deducted the sum of $361 04, which would leave abalance of $274 08 owing to the plaintiff, for which sum it appears to us he ought to have judgment. We have carefully examined all the evidence in the case, which is very loose and confused, and we see nothing else to which the defendant is entitled. His counsel relies very much on the-document F. 4, which he -says contains a full statement of all the affairs of the concern, and urges us to believe that Richardson, the clerk, swears it does. We do not think his declarations go so far. He says what is written in it is correct, but does not swear it contains every thing relating to the affairs of the partnership, and an inspection of the account book shows it does not. It is further urged that entries have been made in the book since the dissolution of the partnership. This is perhaps true, but the defendant ought not to complain of it as those entries [534] go to decrease the balance in favor of the plaintiff, at the time of the dissolution of the partnership, nearly $200, and he does not allege or show those entries to he erroneous. An affidavit, ffig^ffiatTheTe" fendant (who is absent) expects to prove certain mss, band Tas igence^obtain him, is msuffi-cient to grant a continuance. Motions and affidavits for new trials on the ground of newly discovered evidence ceived with and^nmch °cautIonRichardson, the clerk of the parties, says he made the settlement of all the accounts and valuation of the stock on hand, at the request of both parties, and we see no error in it other than that stated. The defendant urges that much injustice was done him by a refusal to continue the cause, when called for trial, on the affidavit of his attorney. The strongest exposure we can make of the insufficiency of the affidavit offered is to quote it verbatim et literatim. “ Defendant expects to prove by Parker, a witness in his kekalf’ that plaintiff took possession and sold the property which is alleged to he on the triang-le ■; that all due diligence ° ° has been used to obtain said witness. Defendant, Maltby, is now in Texas.” (Signed) F. Haynes. This affidavit is want-Tal'i°'us essential requisites, and the judge did not err in refusing a continuance on it. 3 We see nothing- in the defendant’s second bill of exception or his peremptory exception founded on law. The action, it appears to us, is precisely what he says it ought to he. The plaintiff sues for a balance which he says is due him on a settlement of the partnership accounts. We know of no law which forbids a party, when suing for a settlement of accounts, to claim a balance as due to him. It is to recover such supposed balances suits of this description are instituted. The defendant alleges the inferior court did him great injustice in refusing him a new trial, and he earnestly urges us to g'rant him this privilege. His principal ground is evidence dis-covej;e(j sjllee the trial. We have said on more than one occa- * sion that motions of this kind are frequently made as the last ‘ . . desperate efforts of a party, and the affidavit should he receive<l with great restrictions and much caution. This affidavit says> “this evidence was unknown before the trial and judgment rendered in this case, although defendant used every of535 fort and diligence to obtain the same.” It does not appear the defendant took out a subposna for a single witness or asked for a commission to take testimony previous to the trial. Two of the witnesses it seems reside here, the residence of the other two are said to be unknown ; it would have been better if the defendant had stated some facts from which we could judge of the diligence he used to procure his evidence, as it appears very strange that such a host of witnesses and documents could be found within three days after the judgment, when, not one could be found before, although the suit had been pending more than a year. We think the judge did not err in refusing a new trial. The judgment of the District Court is therefore annulled, avoided and reversed ; and this court proceeding to give such judgment as, in their opinion, ought to have been rendered in the court below, do further adjudge and decree that the heirs and legal representatives of William Burton, deceased, do recover of and have judgment against the defendant, William Maltby, for the sum of two hundred and seventy-four dollars and eight cents, without prejudice to the claim of Mrs. Burton, late Mrs. Winters. The defendant to pay the costs in the District Court, and the plaintiff those of this appeal.