Warren v. Wheelock , 21 Vt. 323 ( 1849 )

The opinion of the court was delivered by

Hall, J.

Several objections are made to the allowance of the plaintiff’s charges, in the partnership account; but in the view which we have felt constrained to take of the case, it has become unnecessary to consider more than one of them.

The only claim, which the plaintiff could have against the testator, under his declaration in account, would be for a balance due him on the adjustment of all their partnership dealings. He .could not recover for any isolated service, or expenditure, merely because he had performed the service and made the expenditure in the partnership business. He may have received a greater amount from the partnership funds, or the testator may have rendered equal or greater services and made equal or greater expenditures in the same business. It is only when it should be ascertained, that the plaintiff’s services and expenditures constituted an excess above all the charges proper to be made against him in the partnership business, that he should be allowed to recover for them; and even then he would not recover for the services and expenditures as such, but for the general balance of the partnership account.

We have not been able to satisfy ourselves, from the report of the auditor, that he has found any such general balance to be due the plaintiff. He reports, that no accurate account had been kept be* tween the partners, of their partnership receipts and expenditures; that there was no evidence of how much had been drawn from the partnership funds, or received, by either of the partners, on partnership claims, or for partnership services; that no accounts had been kept of them ; and the auditor expressly finds, “ that no accurate data were furnished him, by which he could arrive at any satisfac-: tory result as to the true state of the partnership accounts.”

If there were any finding by the auditor of any general balance, judgment might be rendered upon it, however uncertain the evh dence, upon which it was found, might be; but there is no such finding. The most that the auditor says is, that, from the testimony of the belief of the plaintiff, that the testator had drawn as much, or more, from the joint fund, as he himself had, which belief was not the result of any careful investigation on the subject, the auditor finds, 'that the testator had drawn about as much from, the partner* ship fund, as the plaintiff had, — although the auditor adds, he has no data, from which to form any definite or accurate opinion.

From the whole report we think it is manifest, that the auditor has not undertaken to find, and has not found, any general balance in favor of the plaintiff, on the partnership.transactions. He has found, that the plaintiff had performed certain services and made certain expenditures in the partnership business, and has ascertained their amount; but whether the amount of them, or any part of it, is really due to the plaintiff, is a matter that the auditor has not ascertained ; and we do not think, the report furnishes any legal basis, on which to render a judgment against the estate, upon the partnership accounts. It may be, that the plaintiff had a just claim against the deceased; but we think he has failed to show it.

No objections are made to the judgment of the county court in regard to the book account; and the result is, that the judgment of the county court is affirmed.