Foreman v. Clement ( 1924 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions presented by the assignments of error will be disposed of in their order as stated below.

1. Did the court err in overruling the motion of the defendant, made before the trial, that the court transfer the case to the chancery side of the court, under section 6084 of the Code?

The question must be answered in the negative.

No authority is cited to sustain the position in question taken for the defendant. It is said in the petition for the writ of error that the defendant, “having filed his plea of a mistake in the accounts,” he was entitled to “demand an accounting between the partners, * * which was a matter for chancery jurisdiction, inasmuch as a court of law could not” afford that relief. Of this position we deem it sufficient to say that it is obvious that the plea mentioned did not entitle the defendant to an accounting between the partners, in view of the facts disclosed by the evidence. It appeared from that evidence, without conflict, that there was no mutual mistake of fact at all, such as was alleged, nor, indeed, any mistake of actual fact, but merely a difference in the opinions — the estimates and conjectures — of the respective parties, at the time of the transaction in question, as to what would be the net result arising from uncertain future events. There was no error in the accounts to be corrected, and no conflict in the accounts as they appeared on the books to be reconciled. The accounts were admittedly correct as they stood on the books.

2. Did the court err in setting aside the verdict on the first trial?

Accurately speaking, the record before us does not present this question for decision. The evidence on the first trial, with an immaterial exception, does not appear from the record before us.

However, if we were to assume that the evidence on the first trial was the same as that on the second trial (which is all that the defendant could contend for), it is apparent therefrom that there was no evidence whatever before the jury to sustain the verdict on the first trial, which found, in effect, that the defendant agreed to pay the plaintiff for the one-third interest of the latter in the aforesaid partnership, consisting of the plaintiff’s interest in the “equity and good will and interest of all kinds to date” in such partnership, the sum of $5,000.00, solely because both the plaintiff and defendant, at the time of the purchase and when the note was given, as aforesaid, by mutual mistake, as alleged in the grounds of defense by the defendant, settled on that sum as being the net assets of the partnership. If we consider the testimony of the defendant alone, we see that he testified that the plaintiff “went over the books and said that the assets were $16,000.00, and that it would cost something to collect the money.” (Italics supplied.) Precisely what the latter cost would be was not stated by either party, nor shown by the books. Such collection cost was, therefore, according to the defendant’s own testimony, a mere matter of opinion as to which both parties had to exercise their own judgment. Moreover, in the light of the evidence for the defendant — the testimony of the accountant — that the books' at this time showed a gross profit, not of $16,000.00, but $36,961.45, it is apparent that the plaintiff in arriving at the figures of $16,000.00, mentioned by the defendant, had deducted from the profits shown by the books nearly $21,000.00 to cover estimated future expenses of realizing upon the assets of the concern, other than the expense mentioned of collecting the money; and further deducted from the $16,000.00 figures a considerable sum — just what does not appear in evidence — as estimated expense of collecting the money. There was, therefore, absolutely no evidence to sustain the aforesaid allegation of mutual mistake, and hence no evidence to support the verdict on the first trial in this essential particular. Therefore, even if we could consider the question as presented for decision by the record before us, we would be compelled to hold that the court committed no error in setting aside the verdict on the first trial, as there was no evidence to support it in the essential particular just mentioned.

Still further: There was the “good will” which was purchased, the value of which was a matter of opinion.

It is settled, and, of course, well understood, and it is not controverted in argument before us, that a party will not be relieved from his obligation to pay money, on the ground that he was induced to enter into the obligation by his own mistake merely (even if it be a mistake of fact, and not merely an error of opinion), which was not also a mistake of the party to whom the obligation was given, i. e., where the mistake of fact was not mutual; unless such mistake was induced by the fraud or inequitable conduct of the obligee. There is no evidence, and no claim even, in the record before us, of any such fraud or inequitable conduct, and none, as aforesaid, of any such mutual mistake.

The case will therefore be affirmed.

Affirmed.