Petrie v. Torrent , 107 Mich. 648 ( 1895 )

McGrath, O. J.

This is an appeal from the second accounting under the decree in 88 Mick. 43. Tke first accounting was before us in 100 Mick. 117. Tkree questions are involved: (1) Tke rigkt of defendant to an allowance for bookkeepers’ services in connection witk tke carrying on of tke business; (2) tke rigkt of complainant to a rebate from tke amount of $55,000 ordered credited to defendant upon tke last accounting; and (3) tke rigkt of complainant to an allowance for solicitors’ fees in connection witk tke litigation to wkick complainant kas been subjected.

1. Tke court allowed defendant $3,236 for bookkeepers’ services for tke years 1892, 1893, and 1894. We think that, under the facts disclosed by the record, this allowance should be reduced to $1,200.

2. On March 15, 1892, pending the first accounting, a stipulation was entered into providing—

“That when the above-named complainant and the Petrie Lumber Company are wholly and completely relieved from liability on account of any and all commercial paper, of every kind and description, upon which they, or either of them, have become liable for the accommodation of S. R. Howell or S. R. Howell & Company, ■and also any and all paper on which they have become liable, of which S. R. Howell or S. R. Howell & Company is the maker or acceptor, the said Albert H. Petrie will, when so requested to do. by S. R. Howell, sign a receipt to the defendant in this cause for the sum of $55,00.0, and said sum shall be applied upon any sum that shall be found to be owing by the said defendant in the .accounting to be had and taken in this cause; but said .application shall be subject to the assignment heretofore made by said complainant to Bunker & Carpenter of an interest of $30,000 in the claim of complainant against the defeñdant in this cause, to the extent of $25,000 ■thereof.”

In May, 1892, complainant executed the following receipt:

“Received of John Torrent, the above-named defendant, the sum of $55,000, to be credited on the decree to be made on the accounting in this cause; said credit to be made subject to the assignment heretofore made by me to Bunker & Carpenter of an interest of $30,000 in my claim in this cause, to the extent of $25,000 thereof.”

No objection to this item was. made upon the last accounting, and it was ordered credited in the decree thereupon. By the stipulation, defendant did not undertake to pay any given claim, or any given! amount; but complainant did agree that, in consideration of his release from all liability, he would receipt for a given sum. He was so released, and he did so receipt. He consented ■to the appropriation of a given sum, and named the consideration, which he has received. No misrepresentations were made respecting the volume of his liability, and the only claim made is that defendant has obtained that release at less than its face value. The court was light in refusing to compel defendant to account for any part of the $55,000.

3. A claim was made at the last accounting for ¡solicitors’ fees, and the question was reserved. This controversy arose in 1886. The appeal in the principal case was here in 88 Mich. 43. The first accounting was finally "disposed of in 100 Mich. 117. Other suits have grown •out of the transaction. Stever v. Torrent, 99 Mich. 68; Petrie v. Badenoch, 102 Mich. 45. Others have been instituted which have not reached this court. It clearly •appears that, since the determination of the principal ■suit, there has been a settled determination on the part of the defendant to harass the complainant, and to deprive him of his just share of the profits of this transaction; that the other suits referred to were instituted by ■defendant with that end in view; and that complainant has been compelled, in order to protect the fund and his •own interests against the attempts of the defendant to absorb that fund, to incur large expenditures, which would have been wholly unnecessary but for the conduct of the defendant.

The decree will be modified as above suggested, with "•costs to complainant, to be taxed, including an allowance to complainant of $3,000 as expenses. Otherwise, the decree is affirmed.

The other Justices concurred.