Veatch v. Babcock ( 1894 )

The opinion of the court was delivered by

Allen, J.:

The testimony in this case is of a most unsatisfactory kind, and we should hesitate to say that it is sufficient to sustain any judgment against the defendant. It appears that the plaintiffs were hardware merchants; that the defendant was a jeweler and watch repairer; that an agreement was entered into by which the plaintiffs were to furnish the capital, and the defendant to transact the business of buying and selling jewelry, clocks, watches, etc. This business was carried on in one corner of the store building occupied by the plaintiffs, From the testimony of C. II. Alexander, one of the plaintiffs, it appears that the defendant at the commencement of the business put in $65 worth of goods. The plaintiffs then from time to time put in money amounting in the aggregate to $6,413.17. He then states that there had been paid back in money and accounts $7,242.20. The other plaintiff, S. Gr. Babcock, testified that Veatch had paid over to the plaintiffs $404 of profits. There is no testimony-showing the total amount of sales made by Veatch except his own statement, which places the amount of sales made by him at $5,205.85. There was about $600 worth of goods left after the partnership ceased to do business, which were disposed of by the plaintiffs.

The only testimony in the case tending to show that profits had been realized beyond the amount accounted for was that of the plaintiffs with reference to estimated profits. These estimates were made by taking the amount of the purchases and computing profits at a rate per cent, which the plaintiffs claimed was the usual rate of profit on such goods. The evidence fails to show that any uniform rates of profit were received, and does affirmatively show that a considerable portion of the goods were sold without any profit. This is a very vague and shadowy kind of proof, only permissible in an extreme case, where no better evidence is available, yet it seems to have been accepted by the referee as a basis for computation in preference to the statement of the defendant, taken, as he claimed, from his books, of the amount of sales actually made. The report of the referee shows a glaring and palpable error in computation. He finds the gross amount of profits to be $2,129.70; that the plaintiffs had received $404.70 thereof. He then proceeds to divide the remaining $1,725 of estimated profits equally between the plaintiffs and defendant, thus depriving the defendant entirely of any share in or benefit from the $404.70 which had been paid over to the plaintiff’s. This is manifestly .wrong, and shows that the referee acted hastily and was inaccurate in his work. The court, in modifying the report of the referee, not only deducted from the amount of the recovery one-half of the profits already paid to the plaintiffs, but struck out $504 of the amount allowed the plaintiff’s, and awarded them even $600. By what system of reasoning or figuring the court reached this conclusion we are not advised. There is nothing pointed out in the record which affords any intelligible basis for any such result. We do not think this case has been fairly tried, or that justice has been done between these parties. The judgment is reversed, and a new trial ordered.

All the Justices concurring.