Allen v. Woodson , 50 Ga. 53 ( 1873 )

McCay, Judge.

We think most of the argument of the plaintiff in error in this case turns upon their failure to recognize the true nature of their bill, and of what they seek to do. Essentially, the object of this proceeding is to seek an account from the estate of Woodson, of certain assets of Woodson & Bowdre, which, it is charged, came into the hands of Woodson, and remained unaccounted for by him to Bowdre at his, Woodson’s, death. The amendment to the bill disclaims all privity between Bowdre and Redding. Redding’s estate is only retained in the bill because it is charged that the firm of Woodson & Redding got the benefit of Woodson’s misapplications of funds belonging to Woodson & Bowdre. It is, therefore, a sine qua non of the complainant’s case that Woodson shall be proven to have died indebted to Bowdre on their partnership account. The firm was dissolved in 1859 ; necessarily its assets were large. They had been partners for years, and, from the amount of the stock on hand, the inference is, that their books covered large amounts. What were the terms of the partnership, what they owed, what was due to them, and what were the relations of each partner, on the books, to the concern, does not appear. The evidence is, that each partner took part in the settlement of the affairs. The books, it is true, were kept in the house occupied by the firm of Woodson & Redding, but the evidence is clear that Bowdre had free access to them, and that he engaged himself in settling up the accounts and collecting the debts due. It is very unfair, under the evidence, to say that the assets were in the sole control of Woodson. The inference to the contrary is very strong; nor does the fact that they were kept at the old store, now occupied by the new firm, alter the case. The parties seem to have remained firm friends, and to have continued to feel mutual confidence ; and the place where the books were kept is just where it was proper to keep them if they were to be open to the free inspection of both parties.

The state of this case is simply this: The firm was dissolved, both parties engaged at pleasure in settling up the affairs of the firm, collecting the assets, and paying the debts; they continued to go on thus until 1863, when the store-house, with their books in it, was burned. These books, doubtless, contained all the materials for a full settlement; in them was entered the account of each man with the firm, what debts he had collected, what debts he had paid, and how he stood in all his relations to the firm. Then came the mutual deed, under seal, executed with great solemnity, arid reciting the loss of the books, and with them the impossibility of making an accurate settlement. The plain intent of this deed is to declare that, at that time, each owed the firm nothing, that they were even as to what each had got, at least, measurably so, and they mutually declared and covenanted that the remaining assets of every hind belonged equally to both. We think this is the meaning and the sole meaning of the deed, to-wit: to declare that, up to that time they were even, each was chargeable to the other, as to the firm assets, nothing; but what was still on hand of every kind was the joint equal property of both. This, as we understand it, is the whole intent and object of this solemn paper, and its very solemnity is significant of its intent. It means simply this: Our dealings have been large, complicated, and continued through many years. We have lost the only means of a perfectly accurate settlement. We are, as nearly as we can judge, about even. We do, therefore, hereby, under our seals, and before two witnesses, covenant that the past shall be buried, and that we are jointly and equally interested in what remains. There is evidence that subsequently to this they divided a considerable sum of money, giving mutual receipts.

Again, in 1866, just before Woodson’s death, they meet again, and the notes given by Woodson to Bowdre for the stock of goods are settled. But how? 1st. The amount due, after taking off the credits, is found. 2d. A memorandum account of Woodson against Bowdre, for articles (some $2,400,) since the war is taken off. 3d. An account against Bowdre, on the books of Woodson & Redding, is taken off. 4th. The balance due (some $2,500 00) is paid in tobacco, and the receipts of Bowdre is taken, purporting and stating it to be in full of the note, and in full of all demands.

Soon after Woodson dies. Bowdre states to various persons that he has settled with Woodson; that he has taken tobacco for all Woodson owes him; that he has settled everything except the lots, and soon after he also dies.

Independently of the deed, the receipt and the statements of Bowdre, we think the case for the complainants a very weak one. Two men have been in partnership for many years, they dissolve, 'both engage in settling up the affairs, each, doubtless, receives and pays out large sums; four years after the dissolution the books are destroyed; three years after this both parties die within a few months of each other, friends to the last. And it is now proposed to charge one to the other, because, on looking into the private papers of that one, (as to Bowdre, the books of Woodson & Redding are private), it is discovered that within a year or two after the dissolution he had funds in hand belonging to the firm, and their private books do not show that he accounted for these funds to his partner.

We think this, even without the evidences of settlement, is very inconclusive matter with which to charge Woodson’s estate. After ten years have passed since the dissolution, it is proposed to lift up the veil which time and war and fire and death have drawn over the affairs of the firm, and seizing upon but one item, to charge Woodson’s estate with that.

At last, the entries in Woodson & Redding’s book only prove that at that date Woodson had funds of Woodson & Bowdre in his hands — and they would prove this just as clearly if they were fully balanced — that is, if they showed the sums mentioned had been returned to Woodson & Bowdre ; for in the nature of the thing that would only have been returning them to Woodson. But, in our judgment, the fact that Woodson or Bowdre has, at some time since the dissolution of their firm, had money in hand belonging to the firm, is a very small matter. Whether the money so on hand is unaccounted for; whether Woodson had or had not aright to use the money for his own purposes, depends on the relations in which he and Bowdre stood towards those assets; and to know this would require a full inquiry into the whole affair. A partner, even of a dissolved firm, does not own in his own right the half of any particular sum of money, or the half of any particular thing; his interest is one-half after a full settlement. And it is impossible to say whether Wood-son is to account for this money, unless we know the state of accounts between them.

Suppose, in looking into the papers of Bowdre, it were to be found that early in 1860, he had in hand two or three thousand dollars of the money collected from the firm assets, and that he had used it for his own purposes, would that single fact charge his estate? Could the real rights of the two partners as to any particular sum be settled without a full investigation of the whole?

But if to the inconclusiveness of the whole of the complainant’s evidence, there be added the solemn deed, the receipts and the sayings of Bowdre, the proof of a settlement of the whole matter by the parties during their lifetime, seems to us conclusive. Nor is the letter written by Woodson to Mrs. Eedding seriously in th,e way of this. At most, it is wholly uncertain as to amounts, but in any event, its language is not inconsistent with the fact that Woodson & Bowdre were even. The original advance of this money to Wood-son & Bowdre was really an advance by Woodson. The name of Woodson & Bowdre was only used to keep the accounts separate. And in this letter Woodson, doubtless used the name of Woodson & Bowdre 'instead of his own name, for the reason that the advance was thus entered on the books, and it would be giving an extraordinary effect to this private communication from Woodson to Mrs. Eedding, to accept it as proof that on a full settlement of the affairs of Woodson & Bowdre, any amount, much less any specific amount, was still due to Bowdre.

With this view of the nature of the complainant’s case, and with the consideration that it is necessary for them to establish that on a settlement of the affairs of Woodson & Bowdre, Woodson would be in debt to Bowdre, we see no error in the charge of the Court upon the receipts and deed.

The deed has for its sole purpose to declare that, up to that date, the parties are even as to the firm affairs, and though the receipt is in terms only for the balance due on the two notes, yet the mode in which that balance was found, to-wit: by taking off the two accounts — one personal of Woodson against Bowdre, and the other of Woodson and Redding against Bowdre — gives point and significance to the other words, “ in full of all demands,” and “on final settlement.” If to this be added Bowdre’s subsequent statements, we think it was right in the Judge to refuse to say to the jury that the words, in full of all demands, could not be taken to go beyond the special subject, to-wit: the notes.

So far as the receipt is a contract, it can, it is true, go no further than the consideration then passing, to-wit: the amount taken in discharge of the note. But if the facts justify it, the words, in full of all demands, may justly be taken, not that anything else is then satisfied, but as an acknowledgment that nothing else was then due; and, prima facie, we think it has that effect. If anything else is shown to be due, the words do not bar it. But it amounts to an acknowledgment that nothing else is then due. We think, too, in this case, under the facts proven — especially, in view of the fact that the balance due on the note was found by taking off the accounts, as well as the frequent statements by Bowdre — make it pretty clear that it was the intention of the parties, not only to settle the note, but to declare there was nothing else to settle. Is it probable that Bowdre would allow the accounts to go to reduce the note, if Woodson had in his hands money of the firm unaccounted for; or that Bowdre would say he had settled in full with Woodson everything except the lots, if there was money in Woodson’s hands unaccounted for?

The effort of the complainant was to open a settlement — two settlements — one by deed, between the parties, of the matter noAv in hand, and it was not error in the Court to say that, after the death of both parties, this should not be done on anything but clear evidence. This was not only sound law, but sound sense — nothing but the statement, in another form, of the rule against stale demands, and which is the foundation of the statutes of limitation. If the receipt, with the words, in full of all demands, and the deed, are to be considered as evidence of a settlement of the firm matters, and we think they are, then there can be no good objection to the charge on either of the two points relating thereto.

We think there was error in the Court on the question of the statute of limitations. The rent is only an item of the things intended to be charged against Woodson — only an explanation of the mode in which he com^erted the assets, and, in that view of it, it stood Avith the other items. If it is to be considered as a debt actually due on account by Woodson & Redding, then the statute would apply; but if, as-we think it may be considered, it is only an itemizing of the mode in which Woodson got hold of and used the assets of Woodson & Bowdre, the statute Avould not apply.

But in that case it Avould stand on the same footing as the other items, and if the jury was right in its verdict, this charge did no harm. The money paid to Bowdre’s administrator by Woodson’s executor was clearly paid by mistake of fact, if Woodson & BoAvdre had settled in life. We think the evidence of this is overwhelming, and the two papers found by the administrator were not, in fact, evidence of any debt. Doubtless they thought so, but the jury have found, and we think rightly, that this Avas a mistake. If so, it ought to be repaid. The payment of it was under a mistake of fact.

Upon the Avhole we affirm the judgment. Unless these two men Avere very different people from what they seem, it is a great error to undertake to open the affairs of this firm. To do so Avould be to charge Mr. Bowdre Avith great folly and ignorance of his OAvn rights, and Mr. Woodson with great want of good faith to his life-long friend. Nothing in the testimony justifies such a charge against either, and a jury having so found we think justice to all parties requires us to leave that finding undisturbed.

As to the refusal of the Judge to allow the complainant to get clear of the effect of the answer by waiving discovery after the answer came in, we think the Judge was right. The Code, section 3101, authorizes a complainant to waive discovery. But this is a very different thing from waiving its effect after he has got it. It seoms absurd to sajr that discovery can be waived after it has been obtained. Had that been the meaning of the Legislature, some different language would Lave been used. As it is, the complainant may “waive discovery ;” to do that he must waive his right to the defendant’s answer. What is now proposed is not to waive discovery, not to waive the necessity of an answer, but to waive the effect of the answer after it has been made. This is not what the statute authorizes, and we do not think it can be done.

Judgment affirmed.