Kelsey v. Hobby

delivered the opinion of the Court.

This is ah appeal from the decree of the Circuit Court for the district of South Carolina. -

It appears from the record that Kelsey, MTntyre, and Hobby, for some time previous to the 9th of February, 1822, carried ou

“Articles of agreement entered into, at the dissolution of the firm of C. Kelsey and Company, between Alfred M. Hobby, of the first part, and Charles Kelsey and Charles MTntyre, of the second part, witnesseth, That the said Alfred M. Hobby doth agree to withdraw from the said firm upon the following conditions, viz.: that the said parties of the second part, are to take upon themselves the entire settlement of the business of the said firm, and are to pay to the said A. M. Hobby, after the debts of the said firm are all paid and discharged, and a sufficient sum collected out of the debts now due to the said firm, five-thousand five hundred dollars, and in Bridge bills whenever he shall demand them, one thousand one hundred and thirty dollars. And the said A. M. Hobby, for said consideration of the above sums of moñey to be paid, and the further sum of one dollar to him in hand paid, the receipt whereof is hereby acknowledged, hath relinquished and by these presents doth transfer to the said parties of the second part, all his interest or claims of whatever nature he has, or may have, as partner in the said firm. It is also stipulated and agreed, that the said A. M. Hobby of the first part, in consideration as above specified, is to protect the said parties of the second part, from a certain judgment obtained against said firm by the branch of the United States Bank, in this city, and to hold them harmless from any balance, should there be any due, after the conclusion of the settlement between John M'Kinnie and Thomas Gardner, respecting the said judgment. And for the faithful discharge of this agreement, we bind oursélves, our •heirs,.executors, administrators, or assigns.”

At the time this agreement was executed, an inventory was taken of the assets and debts of the firm, by which it appeared that the goods and property on hand, together with the debts due to the partnership, were estimated at thirty-eight .thousand one hundred and sixty-four dollars and ninety-six cents; and that the debts due from it amounted to twenty-six thousand fifty-seven dollars and ninety-one cents, and that this schedule formed the basis of the agreement.

On the 7th of February, 1830, M'Intyre put -in his separate answer, in which he dénies that the assets of the partnership produced the surplus charged by the complainant; and exhibited an account according to which the funds of the partnership realized only twenty-nine thousand five hundred and eighty dollars and eighty-three cénts, and the debts' paid amounted to twenty-eight thousand eight hundred and- seventy-four dollars, and sixty-six cents; and he insisted that large sums were also paid by them for interest on the debts of the firm, and heavy expenses incurred, which were not introduced into this account, but for which Kelsey and MTntyre ought to be allowed credit; arid that when these sums were -added, they would amount to considerably more than had been collected; and that in addition to this, they are entitled to an allowance of two and a half per cent, on all sums collected and paid by them. ■ He also averred that Hobby did not perform his part of the agreement, and that an execution was afterwards issued by the branch of the United States Bank, and the' goods of Kelsey and.M'Intyre seized for the'debt against which Hobby had covenanted to save them -harmless; ánd that by reason of that execution and seizure, they were put to great expense, and were seriously injured' in their credit and embarrassed in their business as merchants; arid insisted that they were absolved from their • agreement by the failure of Hobby to perform his-part. The answer further stated that although Kelsey and MTntyre denied the fight of the complainant to the Bridge bills he claimed, yet they were willing to give him an order for them on the attorney in whose hands they had been placed for suit, and who had prosecuted the claim to judgment. That the respondent had always been ready to account with the-complainant, Hobby, and to deliver him these bills, but that no demand was made until this suit was about to be instituted.

There was a general replication to these answers, and the ac counts referred to a master, by order of the Court; when his report came in, many exceptions were filed to it on both sides; and upon hearing, the Court set aside the report, and returned it again to the master, with directions as to the ■principles on which it was to be stated. A good deal of testimony was taken on both sides, and the master made a second report at April term, 1839, according to which the respondents had paid two thousand and thirty-one dollars and five cents, beyond the assets which came to their hands. Many exceptions were again filed on both sides to this report, and it was by order-of the Court again returned to the master with directions to take further proof as to one of the items in controversy.

■ In the latter end of August, 1839, while thé accounts were pending before the master, as hereinbefore mentioned, Hobby went to New York where Kelsey resided and was carrying on business; and a few days after he arrived there, he was arrested at the suit of Kelsey and M'Intyre, upon a claim for four thousand dollars as damages for not having saved them harmless against the debt due the Branch Bank of the United States, according to his covenant in the agreement hereinbefore mentioned. It seems that Kelsey was advised by his counsel, in New York, that this claim could not be allowed him in the Chancery suit, because the damages were unliquidated. Being a stranger in the city, he found difficulty in procuring special bail. But an acquaintance whom he had occasionally met in society, and to whom he applied, entered into' a bail-bond to the sheriff conditioned that he would appear to the suit and put in special bail within twenty days after the fourth of September then next ensuing; Hobby assuring him that he expected some of his southern friends to be in New York in á few days, and that he would then be able to relieve him. The party who thus became his security informed Hobby, in the presence of the officer in whose custody he was, that he could not justify as special bail; and he was not, there

The southern friends, of whom Hobby spoke, when they arrived offered to become his special bail, but not living in the state of New York they could not be taken without the consent of Kelsey, And Hobby remained in New York, unable to procure special bail until the sixth of September, when he signed an admission of the correctness of hn account concerning the whole controversy in the Circuit Court, which had been prepared some time before by one of Kelsey’s clerks. According to this account, Kelsey and MTntyre had paid fifteen thousand eight hundred and fifty-nine dollars seventy-three cents, under the agreement with Hobby, beyond the amount of the partnership funds that came to their hands. And at. the same time that he signed the account, he executed the following release:

Account of C. Kelsey and Company with the old concern of C. Kelsey and Company. United States, South Carolina District. Being Sixth District, United States.

A. M. Hobby and Thomas C. Bond, I Now pending before said Charles Kelsey and Charles MUntyre, ) Court.

In Chancery.-

In this case, the parties, Alfred M. Hobby and Charles Kelsey have come together, and examined the subject-matters in dispute,, and they find the within account correct, and it is hereby admitted to be correct, and every entry in it. And they do not deem it just or equitable that said suit should be further prosecuted. And in consideration of the premises, and one dollar paid, the’ parties in said suit hereby discharge each other from all demand in the same. And each party releases and discharges the other from all demand of every name and nature, and agree that the said suit should be discontinued. As witness our hands and seals, this sixth day of September, eighteen hundred and thirty-nine:

A. M. Hobby, [l. s.]

C. Kelsey. [l. s.].

Witness to the signatures and seals of A. M. Hobby and C. Kelsey.

Geo. H. Kelsey.

B. A. Hegemon.

On the Sth of January, 1840, the release and settlement above-mentioned were produced in Court by the solicitors for tire respondents, and a motion thereupon made to dismiss the bill. This motion was resisted on the-part of the complainant, but the particular grounds upon which it was objected to are not set forth. The order of the Court merely states that the release was impeached by the complainant’s 'counsel, and authorizes both parties to take testimony in regard to the settlement and release. Under this order, sundry depositions were taken and returned on the part of the .complainant, to show that the settlement and release were without consideration, and that they wore extorted from him by the arrest under which he was detained in New York; his southern friends and acquaintances being refused as bail, because they did not reside in the state, and he being unable to leave the city until the temporary bail he had procured was discharged. And sundiy depositions were also taken and returned on the part of Kelsey, to show that there was no harshness or oppression on his part, and no undue advantage taken of Hobby; and that the settlement and release were freely ánd voluntarily made.

The case came on for final hearing on the 30th of May, 1840, upon the report of the master, and the exceptions filed to it on both sides. ' The report, which stated as before, a balance of two thousand and thirty-one dollars and ninety-five cents, in favour of Kelsey and MTntyre, for payments and allowances made to them, over and above the sums realized by them from the partnership effects, was set aside by the Court; and upon the testimony in the cause, the Court proceeded to pass a decree in favour of the complainant, for five thousand five hundred dollars with inierest, and for the Bridge bills mentioned in the agreement, and allowing to the respondents a set-off of three hundred dollars, for the damages, sustained by reason of the execution issued against them by the Branch Bank of the United States, as

This statement of the facts in the case may appear to be tedious; but from "the nature of the proceedings it is necessary, in order to show how the points 'arose which were made in the argument in this Court.

• The appellants contend that the Court of Chancery had no jurisdiction beyond that of compelling a discovery of the amount which Kelsey and MTntyre had received under the agreement; and that if any thing was found due from them to Hobby, he wasbound to resort to his action at law on the covenant in order to recover it. But the Court think it was a very clear case for relief, as well as discovery in Chancery. It is true he had ceased to. be a partner, but the appellants had received the" assets Of the partnership upon a trust that they would collect them, and pay the debts, for which. Hobby was liable as well as themselves; and would pay over to^ him the sum before mentioned, as sooq as. they collected enough for that purpose after the payment of debts. He was, therefore, entitled to an account; and if upon that account any thing was found due to him, he was, upon well-settled Chancery principles, entitled to relief also.

. Neither can the objection be sustained as to the mode in which the amount due was ascertained. It is true, that according to the ordinary mode of proceeding in Courts of Equity, instead of setting aside the report of the master, the Corfrt should have passed its judgment upon each of the exceptions, or have remanded the account to the auditor with additional directions as to the principles upon which it was to be stated. And if it had been necessary to ascertain precisely the amount which the appellants had collected over and above the debts they had paid, the proceeding adopted by the Court would have been liable to the objections urged against it. For the decree could not in that case have been reviewed in th'e appellate Court, and the exact balance ascertained; unless the record showed what items were allowed and what disallowed in the inferior Court. But this is not a case of that description. If the appellants had received-the sum claimed by Hobby beyond the amount of debts paid, it mattered, not how much more they had received; and the case did not require a statement of the exact amount. And as the evidence,

It would extend this opinion to a most unreasonable length, if the Court were to enter upon a particular.and detailed examination of the various disputed items, and of the testimony and calculations relied on by the parties to support their respective claims. Fourteen exceptions were taken to the auditor’s report ^by the complainants, and six by the defendants; and the evidence upon which they depend is voluminous. Four of them require a particular examination and comparison of different accounts, in order to arrive at a just conclusion. We have looked into the whole testimony very carefully, and unless the release and settlement in New York is to be regarded as conclusive, we are satisfied that Kelsey'and Mdntyre have received from the partnership assets beyond the- amount paid for debts, a larger sum than that decreed against them by the Circuit Court. .

This brings us to examine the release, and the account stated at the time it was given.

Some objections have been made as to the manner in which the release was introduced into the proceedings. It was filed in the cause, and a motion thereupon made to dismiss the'bill; and it is said that being executed while the suit was pending, and after the answers were in, and the accounts before the master, it should have been brought before the Court by a crossbill or supplemental answer, and could not in that stage of the proceedings be noticed by the Court in any other way. It is a sufficient answer to this objection to say that it was admitted in evidence without exception, and both parties treated it as properly in the cause; and the complainant proceeded to take testimony to show tha.t it was obtained from him by duress, and the defendants to show that it was freely and voluntarily given. It had the same effect- that it would have had upon a crossbill or supplemental

The release and account being therefore regularly before the Court, we proceed to inquire into their legal effect, and the degree of weight to which they' are^ entitled. The effect of a release, executed in consideration of the settlements of accounts between the parties is clearly stated in Story’s Equity Proceedings, p. 529, sec. 685, If the account is impeached, the release will not prevent the Court'from looking into the settlement; and the release in such a case is entitled to no greater torce; in a Co.urt of Equity than the .settlement of the account upon which it was given. In the case before us-, the settlement^f the account was the only consideration for the release. The complainant, who resides in Georgia, anu who had gone to New York upon business^ was unexpectedly arrested for a claim which was then pending between the same parties in the Circuit Court of the United States for the district of South Carolina. The suit was brought for damages alleged to have been sustained by the failure of Hobby to indemnify the appellants against the claims of the Branch Bank of. the United States hereinbefore mentioned. It is true, that the plaintiffs in the suit were advised by counsel that they could not be allowed for these damages in the proceeding in equity, because they were unliquidated; and they ought not therefore to be held accountable for that error. Yet it's very clear that the suit should not have been brought; because-these damages formed one of the items in controversy between the parties in’ the suit in Chancery, which had been so long pending between them. And that Court had not only jurisdiction over the subject, but it was bound to ascertain and allow them before it could adjust the account,- and grant the relief to which, the complainant was entitled. • The mode by which a Court of Chancery ascertains, the amount in casés -of that description, is either by a reference to the master, or by sending an issue of quantum damnificatus to be tried by a jury. • The ,'c.ases upon this subject are collected-qnd arranged in 2 Story’s Commentaries on Equity, ch. 19, p, 104.

This'is the testimony of the witness. Nc hooks or papers appear to have been produced, or to have been in the pity of New York, at the time, in the possession of either-party, except the account produced by Kelsey, and signed by him .and Hobby. And yet the-release states, that the parties had “ come together and examined the subject-matters in dispute,” and found that accpunt correct; and thereby ■“ admitted it to. he correct,-and every entry in it.” And the account too which is thus admitted, con