Frank v. Webb , 67 Miss. 462 ( 1889 )

Woods, C. J.,

delivered the opinion of the court.

This is an appeal from the decree of the chancery court of Bolivar county, by which appellants are required to pay appellees about $14,575. Nearly thirty causes are assigned for error, but a full and thorough examination of the voluminous record makes it apparent that we need consider a few only, in order to reach a proper conclusion.

It is alleged by counsel for appellants that some of the appellants against whom the decree was rendered were never before the court.

The record shows that in October, 1888, without any motion or suggestion from any source, a summons was issued in this cause, directed to the sheriff of Bolivar county, commanding him to cite Mrs. Sallie Sugarman and several others, including by name Abe and Mamie Frank, and their guardian Godfrey Frank, to appear and show cause why this suit should not be revived against them. On this process there is no return by the sheriff, but one Frost, signing himself a deputy sheriff of Shelby county, Tennessee, endorses thereon a sworn statement that he had, on October 22, 1888, served the citation on Abe Frank and Mamie Frank, and on Godfrey Frank, their guardian. On February 4, 1889, more than three months afterwards, the deaths of Joseph Sugarman and Henry Frank, two of the original defendants, were suggested, and by order of the court the cause was revived against their adult heirs, who entered an appearance by their counsel, and a guardian ad litem was appointed then by the court for the two minors, Abe and Mamie Frank, the order of the court reciting that these two minors had already been lawfully summoned.

It is impossible for us to conceive on what ground the court below held that these minors had been legally summoned, or on what ground the court made the appointment of a guardian ad litem for them. When the pretended service of the Tennessee deputy sheriff was made, there had been no suggestion made of the death of the parent of the minors, nor anything offered whereby it appeared that the minors had no mother or guardian in Bolivar county, or elsewhere in Mississippi. If the sheriff himself had made the return we are considering, instead of this wholly unauthorized person in Tennessee, the court would have had no power to appoint a guardian ad litem for these minors. Before the appointment of the guardian ad litem, it should have been shown by the sheriff’s return that the minors had no mother or guardian in his county; and, moreover, it should have been made to appear to the court that the minors had no mother or guardian in any other county in this state, as was held by this court in Erwin v. Carson, 54 Miss. 282. For,- until citation had been served on the mother or guardian, or until it had been made to appear to the court below that the minors had no mother or guardian in this state, there was no authority lodged in the court to make any appointment of a guardian ad litem.

This error alone would require a reversal of the decree made by the court below; but, as we dissent in other vital particulars from the action complained of in that court, we think it proper to go further, and point out some other errors which contributed to the result reached.

Among other specific instructions given by the court to the clerk and master, in referring the matter to him for the purpose of stating an account between the parties, the clerk was directed to credit the complainants, as Lyman’s representatives, with salary due Lyman for twelve years at $900 per aunum, and the clerk accordingly reported defendants as due Lyman on this account $10,800, with $73.3 interest thereon..

It is well settled that no partner can charge his co-partners any sum for his services without an agreement made to that effect, and, further, that it is incumbent on the partner propounding such claim to compensation to support and establish it. Now, the proofs offered in support of this large demand were statements alleged to have been made by D. J. Allen, the former bookkeeper of the late firm of Lyman & Co., on two or more occasions, that Lyman had a salary of $100 per month, for his services, and the evidence of Shepherd, a partner of Lyman and Brown in the original firm at Australia, that in that business Lyman received $75 per month. We are unable to see on what recognized rule of law Allen’s statements are to be made to bind these defendants. We are aware that, in proper limits, principals are bound by the declarations of their agents, but this salutary principle no way affects the statements alleged to have been made by Allen. Besides, it is but fair to say, that Allen, under oath, denied that he made these statements. However that may be, we are clearly of opinion that any statements of this character made by Allen fixed no liability for compensation for Lyman’s services on the surviving members of the firm.

The evidence of Shepherd, as to the payment of a salary of $75 per month to Lyman by the former firm of W. R. Shepherd & Co., is wholly insufficient to establish any agreement on the part of the members of the firm of J. W. Lyman & Co., to pay Lyman compensation for his services. But, on the other hand, it appears that the books of Lyman & Co., during the period of twelve years, when that firm was in business, contain no entries evidencing any purpose of Lyman to claim, or any hint of an agreement of his firm to pay him compensation, and these books were kept wholly under Lyman’s direction. The annual statements furnished the non-resident partners by Lyman contain no entry of such character, and none of the bookkeepers of the firm ever heard any such claim mentioned by Lyman.

We are clearly of the opinion, therefore, that the charging $10,800 against the appellants on account of salary supposed to be due Lyman was erroneous, as was the $713 interest thereon.

The allowance of $120 per annum for ten years, as money due Lyman on account of salary as postmaster, was likewise error. The proofs show that, during two years, Lyman credited himself with the earnings of the post-office, on the books of Lyman & Co., but for ten years the books contain no such entries. Let it bé conceded that the profits derived from the post-office business went to, and were used by, the firm of Lyman & Co., yet, when we remember that during two of the twelve years Lyman had himself credited with the profits arising from the post-office business, and that during the other ten years he neither made nor claimed any credits on that account • and that, not only the books showed no such claim or entry, but that the annual statements made up and sent the other partners purported to be accurate transcripts from the books and to show the true condition of the business, and that these annual statements were made under Lyman’s supervision and management, it is obvious to us that Lyman’s representatives and heirs cannot now maintain this claim, and that the action of the court below was erroneous in this particular.

The direction of the court below to the clerk and master, and his action thereunder, in charging appellants with one-half of all the notes and accounts due Lyman & Co., amounting to $5945, and with $1545, interest thereon, in the face of the proofs — the only evidence taken on this point — made by Peake and- Allen, that the uncollected debts are worthless, appears to us to be incorrect • and the crediting Lyman’s representatives, the appellees, with large sums as interest, and the failure to charge them with any interest on Lyman’s debt of $6413, due the firm of J. W. Lyman & Co., is obviously inequitable' and erroneous.

We think it unnecessary to consider the many other causes of error assigned, as this opinion, on the several points already considered by us, will meet the requirements of the case in any further proceedings.

The decree of the chancery court is reversed, and the order appointing the guardian ad litem is vacated and set aside, and the cause is remanded.