Rehill v. McTague , 114 Pa. 82 ( 1886 )

Mr. Justice Green

delivered the opinion of the court,

The item 'of $1,350, claimed by the defendant against the plaintiff having been remitted from the verdict, and thus practically allowed as a credit, the assignments of error which relate to it alone, are eliminated from the present discussion. These are the 3d, 16th, 23d and 24th.

The item of 14,900.37 part of the sum recovered and the claim for which, by the plaintiff, grew out of the second track contract on the East Penn, road between Emaus and Alburtis, was also remitted from the verdict and the assignments relating to that item are also immaterial: these are the 2d, 8th, 15th, 22d and 29th.

The first assignment is entirely unimportant. The remark of the witness was onlv a casual and general statement regarding the Southern Pennsylvania contract, descriptive of its substance and not at all a matter of controversy, given incidentally in the course of his testimony, and was simply objected to after it was made with no application to strike it out. Even if the reception of the remark in evidence were error we would not reverse in such circumstances, but it was not error merely to refuse to sustain such an objection.

Fifth, seventh, and ninth assignments. We see no reason for charging interest on either side in such a case as this, and as its rejection is more beneficial to the defendant than to the plaintiff he has no reason to complain of the action of the court on this subject.

We do not sustain the 25th or 26th assignment because we do not think the tenor of the charge was to mislead the jury either as to the law or the evidence, and the direction to find either for the plaintiff or defendant whatever sum might be found due from the one to the other, was simply doing what each party asked. Each claimed a verdict against the other for an amount due, and neither of them asked for a verdict of “no accounting.”

The 27th assignment is not in condition for us to act upon it. The record does not show any exception to any action of the court in allowing the paper in question to go to the jury, and as there is no exception there is nothing upon which to base an assignment of error. The assignment itself simply alleges as error that the entire statement was not submitted to defendant’s counsel. Plaintiff’s counsel allege that defendant’s counsel had every opportunity of seeing it, and that the court constantly referred to it in the charge. We of course can not verify by the record an allegation that it was not submitted to defendant's counsel. If there is any substance in this complaint the proper remedy was by a motion for a new trial and this was adopted, but the court declined to grant the new trial, and we can not review that action of the court.

The 28th assignment is not sustained because we can not say there was not evidence to warrant the verdict. That depends in this case largely upon the credibility of witnesses and that is a matter exclusively for the jury.

The remaining assignments raise substantially the one question whether the settlement made by the three clerks in 1875 is to be regarded as “an account stated” in equity, conclusive between the parties except for fraud or mistake.

The court declined to give it a conclusive effect, but did give it much weight, and in fact held that as to all items in it which were claimed by one party and assented to by the other the party so assenting would be bound.

The treatment of this subject by the learned court below seems to us as exceedingly fair and in strict accordance with the authorities. The statement in question, claimed by the defendant to be conclusive, was not prepared by the parties or either of them ; it was prepared by three of their clerks who examined the books by themselves in the absence of the parties. When they had partly finished their work they called the parties before them and asked them questions as to many matters they, the clerks, did not understand. Then they took the answers to their questions and reviewed their work, making charges and corrections and again called the parties before them. There were claims "made by each partner which did not appear 'in the books. 'As to these they did not attempt to make a settlement themselves (at least so Whitman one of the clerks testifies) but just put down whatever each party claimed, not deciding whether it was correct or not, simply taking the partner’s word for it, The testimony on this subject is too long to be repeated here, but some portions of it may be quoted. Thus Whitman, who seems to have been the most active of all and was the spokesman in their interviews with the partners, says : “ The books were brought to my place and we were told by the partners or at least by Mr. Reliill to try and make a statement as near as we could, of how they stood...... We found a great many things we were curious to question them on; there were a great many charges entered twice; there was a great many bank accounts we did not understand.” After stating that they took the answers of the parties and worked again for a week he adds — “at the end we made out a statement for each party. We first went over these accounts; when they came in, I don’t think we showed them any figures. I said there were a great many things we did not understand. I think I made the remark that from the books Mr. MeTague had credit of some $30,000 or $40,000 more than Mr. Rehill, that Mr. McTague’s credits were that much more than Mr. Rehill’s; b3 that I meant that Rehill owed McTague.....when we started out to make out this account we were trying to find out how they stood between each other; the way I understood it we were instructed simply to find out how they stood in their business relations to each other; there was never anything expressed that I knew of that it was to be a final settlement. We were to render an account showing how they stood between each other, that is the way I understood it; we gave the statement to them as we found it from their books and from their statements; made the statements as the books showed and as they claimed.....we gave them as they asked and took their word for it, we had nothing else .....I am not prepared to swear that these books were in such an intelligent condition that I could make up a statement from them by correcting the improper balances and additions and subtractions......When I signed that statement I signed it as a correct statement as I could make out with my knowledge of book-keeping. I do not say that it is correct; after that statement had been made up Mr. Rehill and Mr. McTague were called in and each of them was given a copy.....it was simply given to them as a statement of the best result we could make of the books and their claims .....wherever there was no evidence in the shape of books to make up the statement we took Mr. Rehill’s statement; if Mr. McTague made any we considered them.....we took them both for what they claimed; we took their word; we had no right to dispute their word; if either party made a claim we took it at their word and put it down: that was for them to settle hereafter; we were making out a statement of their affairs’as near as we could make it and simply noting where it came from ; as far as the books were concerned we took the books but there were other statements outside which we were bound to take their word for.....we did not dispute either of their words......This statement was for the purpose of enabling them to make a settlement; that was the way I understood it; I am not prepared to answer whether the settlement was to conclude them; they were not bound by it; they did not bind themselves to stand by our conclusions; we were asked to make a statement to the bestof our knowledge from all the information we could glean from them and the books; we could not get along with the account while they were there, they would dispute over a single article for a day; I think they were not agreed upon the items.....we had a number of different charges to deal with that did not appear in the books; this credit to Mr. Rehill is a personal statement from Rehill; when they gave us a personal statement we took it for granted that it was correct;.....we did not take the authority to pass upon the propriety of any of these accounts; the object of putting them into the account was that they should agree and make an arrangement to settle so that they could have the thing before them in some kind of shape; we tried to get it in tangible form.....we prepared statements for them to settle; we did not settle for them.”

In view of the foregoing, and other testimony of a similar kind, it is impossible for us to regard the statement of 1875 as a stated account, conclusive between the parties. It was not made by one party and delivered to the other; it was not an account alone of what appeared upon the books of the firm, but of such matters and also of mere verbal claims made by each, which were set down in the statement upon the bare assertion of the party without question, without any kind of verification, without even any attempt by the clerks to adjudicate or determine their correctness, without the assent of the opposite party and the statement itself is not a statement of account between the partners but between each partner and the firm. Even if it were free from these objections and were in truth an account stated as between the partners, it would not be absolutely conclusive so as to be incapable of impeachment for mistake as to items under the well established equitable right to surcharge and falsify. This right simply affects the burden of proof which in proper cases of stated account rests upon the party against whom the account is set up, the inference being that the account as stated is correct and the duty of disproving or rebutting the inference resting upon the opposite party who otherwise might require original proof of the items of the account.

The text books and the cases are quite uniform in their description of the stated account between partners and the effect to be given to it. Thus in 1 Collyer’s Law of Partnerships § 298 (Ed. of 1878), it is said “It is to be observed that the fact that an account has already been rendered by the defendant to the plaintiff does not deprive the latter of his right to have the same account taken under the direction of a court of equity; to have that effect an account must not only have been sent in to the plaintiff but also have been acquiesced in by him. ...... A stated account may be impeached either wholly or in part on the ground of fraud or mistake. If there be fraud or if any mistake affects the whole account, the whole will be opened and a new account will be directed tobe taken without reference to that which has been stated; but if there be no fraud, and if no mistake affecting the whole account can be shown, but the correctness of some of the items in it is, nevertheless, disputed, the account already stated will not be treated as non-existing, but will be acted upon as correct, save so far as the party dissatisfied with any item can show it to be erroneous. In a case of fraud an account will be opened in toto, even after the lapse of a considerable time ; but if no fraud be proved an account which has been long settled will not be re-opened in toto ; the utmost which the court will then do will be to give leave to surcharge and falsify.” The right to surcharge and falsify is thus defined by Lord Chancellor Hardwicke in Pit v. Cholmondeley, 2 Ves. Sen., 565 — “ the onus probandi is always on the part}*- having that liberty; for the court takes it as a stated account and establishes it; but if any of the parties can show an omission for which credit ought to be, that is a surcharge ; or if anything is inserted that is a wrong charge, he is at liberty to show it, and that, is falsification; but that must be by proof on his side; and that makes a great difference between the general causes of an open account and where right to surcharge and falsify, for such must be made out. Now this is not only after a great length of time, but also after a number of accounts settled between the parties.” In Vernon v. Vawdey, 2 Atk., 119, it was said, “ If there are only mistakes and omissions in a stated account the party objecting shall be allowed no more than to surcharge and falsify.”

In 1 Sto. Eq., § 523, the subject is thus presented: “If, therefore, there has been an account stated, tliat may be set up by way of plea, as a bar to all discovery and relief, unless some matter is shown, which calls for the interposition of a Court of Equity. But if there has been any mistake or omission, or accident, or fraud, or undue advantage, by which the account stated is in truth vitiated, and the balance is incorrectly fixed, a Court of Equity will not suffer it to be conclusive upon the parties^ but will allow it to be opened and re-examined. In some cases, as of gross fraud, or gross mistake, or undue advantage, or imposition made palpable to the court it will direct the whole account to be "opened and taken de novo. In other cases, where the mistake, or omission, or inaccuracy, or fraud, or imposition is not shown to affect or stain all the items of the transaction, the Court will content itself with a more moderate exercise of its authority. It will allow the account to stand, with liberty to the plaintiff to surcharge and falsify it; the effect of which is to leave the account in full force and vigor as a stated account except so far as it can be impugned by the opposing party who has the burden of proof on him to establish errors and mistakes.” In § 525, the terms “surcharge” and “falsify” are defined substantially the same as in the above citation from Collyer, and 'in § 526, an “ account stated ” is described,' and its effect also in a similar manner to that already given.

The learned Court below treated the statement made by the clerks in accordance with the foregoing principles, they allowed it to be given in evidence, thus making it'prima facie evidence; as to all items to which the parties assented they held it binding; to items claimed by one and assented to by the other, binding effect was given; as to disputed items and claims denied the jury were instructed to determine them according to the best light they could obtain from all the testimony ; they were instructed that the statement was not conclusive, but much weight was given to it, and as we think all the consideration to which it was entitled was allowed by the court. The accounts were voluminous and somewhat complicated and there was much dispute as to the items, or many of them. Instead of there being proof that the parties assented to the statement made by the clerks, the evidence was that they would dispute over a single item for a day, and the clerks made no attempt to adjust these disputes, but simply put down the items of adverse claims just as they were claimed and not as they were decided, for they were not decided at all. Such an account can not in any point of view be regarded as a stated account between partners assented to either expressly or by implication.

Most of the authorities cited in the paper hooks are inapplicable, as they do not relate to this class of cases and no one is in conflict with the familiar equity principles to which we have referred. Upon a review of the whole case we fail to discover any error in the treatment of the cause by the learned Court below, and therefore

The judgment is affirmed.