Galvin v. Peterson ( 1909 )

MacLean, J.

It appears from the pleadings, and on the statements of the appellant’s brief, that the defendant sold the plaintiff’s assignor, on April 17, 1907, certain shares of the Bowers Metal Stamping Company, warranting that the assets amounted to $4,082.06, and the liabilities were $5,842.80; and agreed that, in case the assets were less than the warranted amount, he should pay the deficiency, and also warranted that, if the liabilities were greater, he would pay the excess. The plaintiff alleges that the assets were less and the liabilities greater, and claims for the deficiency in the one and the excess in the other. It appears from the accounts enumerated in the defendant’s bill of particulars, that 110 persons were indebted to the company and that 61 persons were creditors of it. It will be necessary, therefore, not merely to compute the summaries of amounts, but also to examine into the correctness of the several accounts. Moreover, it is said in an exhibit attached to the defendant’s affidavit as the memorandum between the parties that the relative liabilities depend upon the net difference between the amounts actually collected on the outstandings and the liabilities, which confirms the view that not only the accounts as they may appear upon a book or books of secondary entry, but also the original entries, will needs be investigated.

It is difficult to reconcile even the later cases upon compulsory references. The controversy herein exhibited, however, involving data so numerous that no contemporary, save the blind Senator, would be expected to carry them in mind, seems to be really within the principles not condemned in any of them.

The allegation in the answer that, on or about the 17th day of April, 1907, the defendant paid the assignor the sum of $300, which was accepted in 'full satisfaction and discharge of all damages, hardly presents an issue to he disposed of first and separately; for, from a phrase in the same agreement, it looks as if this $300 were merely a part of the transaction upon which the account depends, and not a payment.

Gildebsleeve and Seabuby, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.