Chandler v. Allen — 27 N.Y. Sup. Ct. 424

Majority

p. 424

WILLIAM R. CHANDLER as Administrator, Etc., of HIRAM CHANDLER, Deceased, Respondent, v. E. BILLINGS ALLEN, Executor, Etc., of ISAAC B. ALLEN, Deceased, Appellant.

Headnote

Action to settle partnership accounts — proof of the amount of repairs made by one partner ■— the items of labor and materials must be given — the partner ean-not testify as to the average amount of repairs — When a judgment will be reversed because of an error of the referee in admitting evidence.

Upon the trial of this action, brought to settle the accounts of a firm that had been engaged in running a grist-mill, it appeared that the expenses of keeping the mill-flume and dam in repair were to be borne by the pai’ties equally. Upon the examination of the plaintiff as a witness "in his own behalf, he was allowed, against the objection and exception of the defendant’s counsel, to state, in answer to questions put to him, that he should think that the repairs he had caused to be made, including the labor of his employees, amounted, in each year, upon an average, to about fifty dollars, and that the repairs he had caused to be made in the last thirteen years were worth $300.

Held, that it was error to allow the plaintiff to give an aggregate estimate as to the yearly cost of the repairs, grouping together the labor of himself and his employees and the cost of the materials used; or to give such an estimate as to the gross amount of the repairs for thirteen years.

That the items of labor and the materials furnished should be proved with reasonable certainty, before any allowance could be made therefor.

That as the evidence was material, and bore upon an important issue, it must be presumed to have been influential with the referee, and that a new trial must therefore be ordered.

Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

The original plaintiff died after the trial and before the decision of the referee, and the original defendant died after the perfecting of the appeal from the judgment herein.'

M. M. Waters, for the appellant.

H. O. Miner, for the respondent.

The action was brought to settle a partnership and for an accounting in regard to the partnership business. The- business consisted in the running of a grist-mill and dealings in flour and

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grain, and extended during tbe period from tbe autumn of 1862 to July, 1875. Tbe report of tbe referee is meagre and indistinct ; but it seems from tbe pleadings and evidence that tbe original defendant was sole owner of tbe mill, and that the plaintiff’s intestate put bis labor and skill in tbe business against tbe use of tbe mill. Then tbe referee finds that under tbe partnership arrangement tbe parties thereto were to bear equally between them tbe expense of keeping tbe mill-flume and dam in repair, and were to divide the profits resulting from tbe business in equal' proportions. He further finds that the expenses for repabs were borne equally by tbe partners during tbe term of the partnership, and that neither of them bad any claim against tbe other therefor ; and on further adjustment of tbe partnership accounts, other than for said expenses for repairs, be finds that there was due to tbe plaintiff’s intestate from tbe defendant’s testator, for bis half of tbe profits of tbe business, tbe sum of $525.94, and that there were outstanding and uncollected claims and accounts of tbe firm amounting to $1,400, some of which, according to tbe evidence, were collectible.

Tbe referee omits to state whether there were any unpaid debts outstanding against tbe firm, although this fact was put in issue by tbe pleadings. He directed judgment against the original defendant for $525.94, with costs, and also directed the appointment of a receiver “to take charge of tbe effects” of tbe firm, or, as this direction is understood, to make collections of tbe out- • standing claims and accounts of tbe firm. It does not appear that a receiver was appointed ; on the contrary, it is stated in tbe record that such appointment was denied at Special Term, but on what ground is not given.

Tbe first alleged ground of error relates to tbe admission of evidence. It appears that the subject of expense in keeping the mill-flume and dam in repair during the partnership term was made, by tbe pleadings and evidence, an important element in tbe adjustment of the partnership accounts between tbe partners. Tbe partners were to bear this expense equally, and the referee, on tbe evidence submitted to him,, found that they both complied with this provision in the partnership contract, and that neither bad any claim against the other therefor. Tbe plaintiff, on the

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trial, gave evidence on this subject. 'He testified that he caused the repairs on the dam and flume to be made out of his own means. He was then asked: “ What would these repairs amount to each year, upon an average ? ” He was allowed to answer, against objection, and said: “I should think fifty dollars per year ; that included the labor I have done and employed.” And again : “ What was the work you have done upon the mill and dam in repairing them, in the last thirteen years, worth ?”' The witness was allowed to answer, against objection, putting his estimate at $300.

In the admission of this evidence there was manifest error. It ■ was improper to permit the witness to give an aggregate estimate, grouping together labor of himself and of his servants and employees, and also materials used in repairs, and fixing upon an average amount per year, or a gross amount for thirteen years. These expenses should have been itemized -by regular entries in his partnership books. Not having been so entered, the party would be allowed to prove the items and their amounts ; still, the items of labor and the materials furnished should be proved with reasonable certainty before an allowance could be properly made for them. To aggregate the expenses by the year, or for thirteen years, without giving particulars from which to determine the outlay or amount to be allowed, was permitting the witness, a party to the action in this case, to take the place of the referee in fixing the allowance to be made to himself. He left little or nothing to the judgment of the referee ; nothing save to adopt his conclusion, giving as an average aggregate for labor and materials left by the witness unspecified and but generally defined in character or kind. To show the utter impropriety of. this evidence, we need only to refer to the cross-examination of the witness, where he says: “I said the $300 for repairing mill and dam was estimated, or guess-workHe also stated that some of the charges for repairs were contained in his account, and he then added : “I did not include the charges for repairs charged on the book when I made my estimate of $300.” The impropriety of this evidence is very apparent.

It is suggested by the respondent’s counsel that it is not made to appear that this evidence was accepted as influential with the

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referee. It bore, however, distinctly upon an important issue, and it must be presumed to have been influential. (Foote v. Beecher, 8 W. Dig., 520; Schoonmaker v. Wolford,^[1] MSS. opinion.) That it was so, too, is quite manifest. An allowance to a very considerable amount must have been made by force of it, as there were, in point of fact, large expenditures for repairs on the part of the defendant, balanced by like large expenditures on the part of the plaintiff. The referee found the expenses incurred by the parties respectively for repairs balanced, so that neither had any claim against the other therefor. Thus the evidence was material, and was doubtless influential with the referee.

Because of the admission of the improper evidence above alluded to, there must be a new trial, and an examination of other questions in the case becomes unnecessary.

Learned, P. J., and Boardman, J., concurred.

Judgment reversed, new trial ordered, referee discharged, costs to abide event.

* Ante p. 166.