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    HIRAM HUTCHINSON v. PETER C. ONDERDONK.
    1. R. had, during the continuance of a partnership between H. and O., loaned' money, from time to time, to the firm, for which he charged and received the interest; and had, also, from time to time, endorsed notes for the firm which were paid by the firm. On the dissolution of the partnership, the settlement of its affairs devolved on O., and in an account subsequently presented by him to H., he claimed an allowance of $500 for R., for endorsing for the firm, and claimed that he and H. had agreed to make the said allowance to R. There being no satisfactory proof that -the $500 had actually been paid by O. to R., the court refused to allow it.
    2. The partner on whom, upon a dissolution of the partnership, the settlement of its affairs devolved, is entitled to a reasonable compensation for his services.
    The bill states that on the 15th December, 1835, the complainant and defendant entered into partnership in the india rubber manufacturing business, each to receive half the net profits, and bear half the losses.
    That said partnership was carried on until June 18th, 1840, when, by indenture between them, of that date, it was agreed that the partnership should be dissolved, and the complainant, by the said indenture, granted and assigned to the defendant all the machinery, fixtures, stock, materials, goods, and merchandise belonging to the firm, and all the bills, bonds, notes, book accounts, aud writings appertaining thereto, with full power to said defendant to sue foi: and recover said claims and debts, and give acquittances therefor, and to sell and dispose of the said goods and merchandise; the complainant reserving to himself the right to visit the factory, inspect the books, and advise and consult in the settlement of the concerns of the partnership. And, in consideration thereof, the defendant, by the said indenture, agreed to pay off and discharge the debts due from the partnership ; to pay off certain individual notes of the complainant and certain rent and family expenses in said deed specfied; and after making certain necessary and proper deductions in said deed mentioned, to pay over to the complainant the one-half of the surplus moneys to be realized out of the effects of the partnership. And it was thereby further agreed that the defendant should continue the business of said firm on his own account; aud if, at any time during the months of January and February then next, the complainant, should conclude to take and carry on the said business for himself, then, upon signifying his intention in writing to that effect, the said indenture provided that the defendant should fix a price on all the machinery, fixtures, stock, aud materials he might then have on hand, which he would be willing to give or receive for the same; and that it should be optional with the complainant to buy or sell out the same for such price.
    That, notwithstanding the said agreement for dissolution, thi complainant and defendant continued to carry on the said business, in New Brunswick, at their said factory, on the same terms as before, except that the business was carried on in the name of the defendant, and for that purpose a new set of books was provided by him, and the entries therein were made in the name of the defendant, but upon the joint account of himself aud the complainant, in all matters wherein they were jointly interested in carrying on the business aforesaid, until December 24th, 1840, when the partnership was finally dissolved by mutual agreement.
    That on said final dissolution the complainant became the purchaser of all the right, title, and interest of the defendant in 'and to the machinery, stock, fixtures, materials, goods and merchandise then belonging to the partnership, for a price named by the defendant in the mode specified . in the indenture above mentioned, which price was duly paid to the defendant, and the complainant then took sole possession of the said stock, &c., and of the said factory, and thenceforward carried on the said business, without being in any wise connected therein with the defendant.
    That, on the said final dissolution, an inventory was made of the claims and demands of the partnership, including bills, .i i otes, book accounts, &c., intended to embrace all the claims, demands, &c., of the partnership, as well those contained in the books kept in the name of the defendant as those contained in the first set of books of the partnership; a copy of which inventory is annexed to the bill.
    That the said claims and demands, book accounts, &c., in said •inventory contained, and all other claims and demands of the partnership, together with all the books, vouchers, and other papers relating thereto, were taken and received by the defendant for the joint benefit of him and the complainant; the defendant, upon receiving the same, undertaking and agreeing with the complainant to collect the same, and appropriate the proceeds in payment of the debts of the firm, and the surplus, if any, to divide, equally, between himself and the complainant, pursuant u> the provisions of the said parol agreement for' the final dissolution ; as by the said inventory and the receipt and agreement thereunder written, signed by the defendant, will appear.
    The bill then sets out certain claims due the firm which had been divided between the complainant and defendant, by agreement in writing signed by them.
    It then states that, since the final dissolution, the defendant has proceeded to collect the assets of the firm, and has received large amounts of money for and on the joint account of himself and tiie complainant, as well out of the assets in said inventory specified, as out of other assets belonging to the firm, but by oversight and mistake, omitted to be stated in said inventory; and has converted the same to his own use, without rendering to the complainant any just, account, or paying over to him, from time io time, his equal half of the surplus money, after paying off the debts aforesaid, except on the single occasion when he paid to the complainant $335.50, but without stating any account, or otherwise showing the complainant the amount collected or debts paid, or making any exhibit of the real situation of the said átSStítS.
    That the defendant retains all the books aforesaid, and will make no effort to correct the manifest errors and mistakes in the said inventory, nor permit the complainant to do so; but refuses lo come to a final settlement with the complainant respecting the partnership accounts, or to pay over to the complainant any further sum collected or to be collected by him out of the assets of the partnership.
    The bill states that the complainant, ou the dissolution of the partnership, was willing and desirous, and offered to the defendant gratuitously to take upon himself the burden of collecting and paying the debts, and settling the affairs of the partnership, and paying over the proceeds in the manner above stated, and to take into his charge and keeping, for that purpose, all the assets of the firm, and the books, vouchers, and papers concerning the same ; but that the defendant declined the said offer of the complainant, and voluntarily and of choice took upon himself the said burden, and then faithfully promised the complainant to discharge ‘gratuitously the duties of said office; to wind up the concerns of the partnership; to come to a fair settlement with the complainant • to pay over to him his just share of the surplus, and deliver up to him, thereupon, the partnership books, vouchers, and writings, as the continuing partner in the said business.
    The bill prays an account, &c.
    The defendant, in his answer, admits the partnership, and that, on the 18th June, 1840, it was dissolved by mutual consent and that a deed of dissolution was then made and executed.
    He admits that, after said deed of dissolution, the business of the firm was still further carried on, for the benefit of the firm, in his name, and that a new set of’ books was obtained by him ■ for that purpose; but he denies that the business was conducted on the same terms, precisely, as before the dissolution in June, 1840.
    He says that, at the time of the execution of the deed of dissolution, the complainant was indebted to divers individuals, among the rest, to one Samuel Reamer, who had a judgment against him in the county of Middlesex, for several hundred dollars ; that the complainant avoided being seen or going in said county at the time, for fear of being arrested ; that the complainant had become, and was at the time indebted to the firm in $3300, or thereabouts, by means of which circumstances, among others, the defendant became dissatisfied with the existence of the partnership, and sought to have it dissolved, which was finally accomplished by the said deed of dissolution. And though the defendant continued the business in his own name from the date of said deed until the 24th December following, yet everything. done by him in the business, was done with a view to the speedy winding up and final settlement of the partnership business. That the complainant, during that time, had nothing to do in the management of the concern. That the business done con-stated almost entirely in the collection of the debts due the firm and the disposition of the old stock which they had on hand. And that the assignment of all the property, by said deed of dissolution, and the surrender of the complainant's right thereto, was lo enable this defendant to indemnify and protect himself, by the exclusive management of the property and assets, against the aforesaid indebtedness of the complainant to the firm.
    He admits that on said 24th of December, when a final separation took place, the complainant did become the purchaser, as stated in the bill, and paid for the same and took possession, as slated in the bill.
    And he admits that, after the sale and transfer last aforesaid, an inventory was made by the complainant himself, in his own handwriting, intended to include all the bills, notes, books of account and other claims due the firm, accruing either before the dissolution, or between that time and said 24th of December, when the actual separation took place.
    He admits that the bills, notes, books of account, &c., mentioned in said inventory, together with the vouchers, papers, <&c.s relating thereto, were taken possession of by him, for the purpose of collecting and liquidating the same, and, after making proper deductions and payments, to divide the surplus, if any, equally between Mm and the complainant.
    He admits that Schedule A, annexed to the bill, contains a true copy of said inventory, except that the following items are twice inserted in said schedule (giving eleven items, amounting, together, to $1237.32), and that the following items are erroneously inserted in said schedule, the same being claims due this defendant on his individual account, and not due to the firm, to wit, John Onderdonk, $17-99; Peter P. Runyon, $3.50; and that there is a mistake of 25 cents in the sum entered as due from I. Q,. Spader, which corrections being made, leaves the amount of the nominal value of the said inventory $7755.16.
    He admits that he has, since said deed of dissolution, collected and received the claims specified in complainant's Schedule A, corrected as above, except, first, the items stated in the bill to have been divided between the complainant and him, by their agreement set forth of May 4th, 1841, amounting to $1939.50. leaving in this defendant’s hands a balance of $5815.66; and, •second, the following amounts, included in said inventory, which have not been collected, and which, after diligent effort for that purpose, he believes cannot be collected, to wit, (giving names and sums amounting to $345.79,) leaving in his hands 45469.87.
    And he admits that, since the making of said inventory, he has collected and received, of the assets of the firm not included in the inventory, and which, he says, are all that he has thus received, or.knows of as belonging to the firm, to wit, (giving names and sums, amounting, together, to $117.33,) which added to the above, makes, in his hands, $5587.20.
    That he has set forth, in Schedule 1, annexed to this answer, a true and perfect account of all the moneys he has disbursed in paying the debts due from the firm, and in endeavoring to settle the affairs of the firm, amounting to $4798.80, leaving in his hands, to be divided, between the complainant and him, $788.40.
    That the claims above specified as not being collectible, and all others belonging to the firm, as far as he knows, are worthless ; and that, before the commencement of this suit, he offered to transfer to the complainant all the said claims, for the complainant’s own use and benefit, to be collected by him, if they could be, without responsibility to this defendant for any part thereof, but the complainant refused the offer, saying that the matters should be settled according to law.
    He denies that he ever refused to exhibit to the complainant either the books, papers and vouchers of the said firm, or a full and faithful account thereof, or to come to and have a fair and final settlement of their accounts, except on a single occasion, some time before the commencement of this suit, this defendant took from the post office, at about the hour of one o’clock in the day, a letter from the complainant, notifying this defendant that the complainant would call on him, at the hour of two o’clock of the said day, to have a settlement with him, at which appointed time this defendant was under a positive engagement to be elsewhere, and did not attend for that purpose. But shortly after, when this defendant had leisure, he called on the complainant and offered and requested of him to come to a final settlement of their affairs, which he positively refused to do, saying that he had called on this defendant once, and would not trouble himself to do so again, but declared that the law should settle the matters for them.
    He further saith that he has frequently and in a friendly manner, applied to the complainant, since their final separation, and requested him to come to a settlement of their affairs. And he further states, that, after said separation, to wit, on the 17th September, 1841, and when the affairs of the said firm were in the same situation as at present, except that since that time the defendant lias collected the sum of and has paid out the sum of , at the request of this defendant, and through the intervention of Peter P. Runyon, the complainant was persuaded to come to a settlement with the defendant. On which day last aforesaid, the complainant, in the presence of' the said Peter P„ Runyon, had exhibited to him all the books, papers, vouchers, receipts, notes, and other evidences of claims belonging to the said firm which were desired by the complainant, and within the custody and power of this defendant. All of which were then and there examined and inspected by the complainant to his entire satisfaction, as he declared at the time, and all errors, so far as .any had been discovered, were corrected.
    And he further states, that at such inspection and examination of the books, &c., as aforesaid, the said complainant expressed himself satisfied, and fixed the amount himself which he alleged was due from the defendant to him, at the sum of $378.69; $43 of which amount he, the said complainant, then and there admitted that he had previously received from debtors of the said firm on accounts with which this defendant stands charged'in the said inventory. And the balance of the said amount was, on the said day of settlement, paid and satisfied to the said complainant by this defendant, amounting to the sum of $335.69, and for which amount the complainant then and there gave this defendant a receipt in writing, which is now in the custody of this defendant, and ready to be produced.
    He further saith, that at the time of said settlement, when he allowed, paid and satisfied to the complainant, the said sum of $378.69, as above stated, he, this defendant, was satisfied that the said amount was considerably more than the said complainant was then entitled to, or ever would be, out of the assets of the said firm, and that he so told the said complainant j but for the sake of peace, for the purpose of ending difficulty between them, to avoid law suits, and that the complainant might be fully satisfied that entire justice had been done towards him, this defendant yielded to what he then and now considers an unjust demand, and paid him the money.
    He admits that he still retains in his possession the books of the said firm, and he humbly submits to this honorable court that he has a right so to do by the terms of the said deed of dissolution j but he denies that he has ever refused to let the complainant see or examine said books, or to correct any errors contained therein.
    And he further admits that he has since the date of the said receipt, when the said sum of $355.69 was paid by the defendant to the complainant, refused to pay to the complainant any more money, for the reason that he had already paid him more than he was entitled to have out of the assets of the said firm j but he expressly denies that he has ever refused to come to a full and final settlement of their accounts.
    He admits that after the dissolution of the said firm, and after the said books and assets had been passed to this defendant as aforesaid, the said complainant did offer to take into his hands the books, notes, and the other assets of the said firm, and to collect and liquidate and pay the debts due to and from the said firm, without any charge on his part against the said firm for such service. And that the defendant declined such offer • first, because the complainant was at the time considered wholly irresponsible and unsafe, in a pecuniary point of view, not being the owner of property but to a very limited extent. Secondly, because the complainant was indebted to the firm in the sum of $3300, or thereabouts. Thirdly, because the complainant was indebted on his individual account to divers individuals, to a large amount, some of which claims were at the time pressing hard upon him. Fourthly, because the assets of said firm amounted to the nominal value of $7872, or thereabouts, which amount, under the circumstances of the case, the defendant believed would be placed in great hazard by being confided to the hands of the complainant. Fifthly, because the firm was indebted to the amount of nearly five -thousand dollars, for which this defendant was held responsible ; and it was thought doubtful whether the assets of the said firm would be sufficient to pay its debts. Under all these circumstances the defendant would have been unwilling that the said assets should have gone into the hands of the complainant on any terms.
    But he denies that he ever offered or agreed to take upon himself the responsibility and burthen of collecting the claims, paying the debts, and doing all other things necessary to the entire liquidation and final settlement of the business and affairs of the said firm without any compensation ; but, on (he contrary, he saith that the collection of the said claims, and the payment of file said debts, the keeping of the accounts, and the performing of all other duties consequent thereon, imposed upon him a large amount of labor, responsibility and loss of time, for which he submits be is entitled to a just, fair and reasonable compensation out of the property and assets of the said firm.
    And he further denies that he ever promised or agreed to hand or deliver over to the complainant the books, &c„, of the said firm, as the continuing partner of the said firm.
    And he denies that, upon a fair balance of all accounts relating to the matters aforesaid, he is indebted to the complainant in a large sum of money, or any other sum. But he expressly saith that after charging him, this defendant, with all the moneys of the said firm which he has collected, or could have collected, since the said final separation, and after allowing him for all the debts and other expenses which he has fairly and honestly paid out in behalf of the said firm during said time, and after allowing to him the sum of $387.69, paid the complainant as before stated, and after allowing to him out of said assets a just and reasonable compensation for his labor and services in liquidating and settling the business and affairs of the said firm, and after charging the complainant with $27.50 which he received of John Chadwick, of Newark, which belonged to this defendant, but which this defendant saith the complainant received, but has not paid to the defendant, there is due to this defendant from the complainant a large amount of money, which he, this defendant, prays may be decreed to be paid to him, the defendant, by the complainant.
    He admits that the said account furnished the complainant by the defendant, as mentioned in the bill of complaint, was hastily made out and was not very precise as regards dates, persons, &c., for the reason that the complainant was supposed to understand them as well as the defendant, he, the complainant, having made out the said inventory at his leisure, and having also before that time seen and inspected the receipts and vouchers of the defendant at the time of settlement and giving the receipt of $335.69 before mentioned; but that the amounts of debt and credit as contained in said account, so far as this defendant now recollects the same, were correct, or nearly so.
    By consent of the parties, an order was made, April 6th, 1843, referring it to Joseph F. Randolph, esquire, one of the masters of this court, to take an account of the aforesaid moneys and assets come to the hands of the defendant, or which might have been, but for his willful neglect, received by him, and for all other moneys and assets of the said firm for which the said defendant should be made accountable, and which are in the said bill of complaint and agreement specified ; the parties to produce before the said master, upon oath or affirmation, all deeds, books, papers and writings in their custody or power relating thereto, and be examined as the said master shall direct. And all further equity and directions were reserved till the coming in of said master’s report.
    The books were produced before the master, by the defendant, under oath.'
    Jonathan C. Ackerman, Esq., sworn for complainant, saith that, on complaint to witness of Mr. Hutchinson that he could not get a settlement with defendant, witness spoke to Judge Runyon, the father-in-law of defendant, to endeavor to bring about a settlement; this was in the summer after the dissolution; complainant frequently complained to him ; before then he said he had received about $300 in part of his claims.
    Being cross-examined, says he did not speak to the defendant on the subject, but went to his father-in-law, Judge Runyon, knowing that he was acquainted with their business prior to the dissolution; complainant alleged that defendant owed him, and showed a list of notes that he had, a part of which complainant claimed as his; the reason why witness did not go at once to defendant was, that there was not then a very friendly feeling existing between them ; after the dissolution of the parties, witness and two other persons advanced some money, t.o enable complainant to go on with the business in a kind of limited partnership.
    Peter P. Runyon, Esq., sworn on the part of the defendant, says he is acquainted with the parties, and recollects the time when the partnership commenced; witness had a general knowledge of their business, not a particular one; as to the capital of the concern, Mr. Hutchinson obtained from witness about $300, which was, by note, increased to $700, and Mr. Onderdonk advanced $1000; this money and their credit constituted their capital; except the $700, the balance of the capital came through defendant and his friends; witness was his father-in-law, and endorsed for him or the firm ; witness advanced for the firm, in various ways, so that on the 15th of June, 1837, they gave him a bond and warrant of attorney for $4084.88; this was for money advanced by witness independent of endorsements or business paper then outstanding, amounting to about $3000 ; he believes the complainant was indebted to the firm, at the time of the dissolution, and for some time before, in about $3000; the defendant, for some time before the dissolution, sought to have a dissolution ; it took place when it did, at his instance; complainant preferred not to dissolve, but did not object; the first dissolution was intended to bring about a final settlement of the whole concern, and, for that purpose, complainant remained and attended to the affairs, all of which were under the control of the defendant; after the final separation, defendant paid witness between $3300 and $3400; this money was due him from the firm, and paid by defendant. This last objected to by Mr. Wood.
    From December, 1840, up to about the 1st of June, 1841, defendant was engaged in settling up the concerns of the firm, and in no other business that witness knows of, except in preparing to go into business on the water-power. During that time, he was frequently away from home, and, as witness understood, on the business of the firm ; understood that several of the debtors resided out of the state — at Washington, Baltimore, Philadelphia, New York, and the East; witness supposes that it was necessary, in settling up the firm business, to be considerably from home on expenses; it was, during the time, very difficult to collect money; taking into consideration the situation of the affairs of the concern, and the condition of the monetary affairs of the country at the time, from witness’ knowledge of the. whole matter, he would have charged five per cent, for settling up the affairs of the firm; he thinks that a fair compensation from and after the final separation; some time after September, 1841, complainant asked witness if he had said defendant should have commissions; witness does not remember his answer; it was not definite, however; complainant said he had offered to do it for nothing; this he stated as a reason why defendant should have nothing; previous to September, 1841, complainant called on witness, and said he wanted defendant to settle with him ; witness said that was right and reasonable, and he would do what he could to effect it; witness had told complainant-, previous to the final dissolution, that he would do what he could to effect a settlement; witness, accordingly, called on the defendant, and, in consequence thereof, the time and place for a meeting of the parties were arranged; this took place, the witness and both parties being present; September 17th, 1841, was the time, as witness believes; after a good deal of conversation, and going over their whole matters, a balance was ascertained to be due the complainant, and this balance was paid by the defendant; complainant said he would be satisfied with this amount; defendant at first objected, but finally agreed, and gave it to him ; thinks defendant paid all complainant demanded, by a check or otherwise; it was in the neighborhood of $400; this settlement, witness understood, embraced all matters, except two or three small affairs, amounting to about $100, to be settled in future, of which $70 was in a note; all other matters were settled, except there were errors; there were some small matters in which the parties disagreed as to whether they belonged to the firm or not; witness says he cannot say whether they were settled or not; these items were, a charge against John Onderdonk for $17.99, and for cash charged $13.45. After the settlement, defendant complained very much of it, and found fault with witness; he made no resistance to a settlement. Witness says the signature to the receipt marked Exhibit No. 1 for defendant, is in complainant’s handwriting, and is the receipt given on the settlement before stated. Mr. Eeamer had a judgment against complainant for between $400 and $500 ; he asked witness to endorse notes to enable him to pay it, which witness declined ; the judgment was in Middlesex; complainant lived in Somerset; he may have moved over shortly after the judgment; the $3300 or $3400 paid to witness by defendant was in small payments of a few hundred dollars at a time, except the last, which was for $1600. Witness states that a paper shown him is in his handwriting, and contains an account between himself and the firm, and the payments by the defendant; it was made out at the date of the receipt; it is offered in evidence, and marked Exhibit No. 5 for the defendant.
    Being cross-examined, witness says that when the partnership commenced, the complainant was carrying on the business in New Brunswick ; he had previously commenced it; it was an experiment not yet. established ; defendant then first entered into business ; defendant furnished no capital, as witness knows, except what he got from witness and his father; whatever witness advanced was accounted for by the firm; to them witness looked for pay ; it may be considered a loan ; cannot say the amount, or the terms ; impression is he advanced $1000 ; witness was only to be liable for what he endorsed and the money advanced, not for their debts or losses ; no other partners but Hutchinson & Onderdonk ; witness expected some remuneration for his risk, independent of the interest, if the experiment was successful; there was no distinct bargain about it; it was cheerfully awarded. Speaking of the indebtedness to the firm of the complainant, witness refers to the first dissolution ; the firm had an account against defendant also; does not know the amount; after the bond and warrant of attorney was given, an account of the money affairs between witness and the firm was kept separately from that of the bank ; witness loaned them money, and they paid him from time to time; at the meeting of Sept. 21st, 1841, the parties were together an hour, or an hour and a half; witness did not go over the accounts with them; since that time complainant has called on witness and said that he wanted a settlement; this was some time before this suit was brought — a month or two ; he complained that defendant would not settle, and defendant said that he (defendant) did not owe him anything; Mr. Wood called on witness since, and said, let defendant render an account, and a settlement might be effected ; this, was after the suit was brought; witness did not understand Mr. Wood that he was then authorized to settle; has heard complainant say that he wished defendant would take the books and make out an account, or let Thompson do it; this was previous to the first settlement; understood that the parties to this suit were general partners, and each liable as such, both before and since the dissolution ; each to share equally in the profits and losses, according to the rules of law applicable to general partnerships ; wit-is not certain that the thirty-three or four hundred dollars embraces all the moneys paid him by defendant; witness incurred the liabilities for the firm, on account of his son-in-law; he would not have done it otherwise.
    Being again examined-in-chief, witness says that when the complainant called on him, and said he wanted a settlement from defendant, he said nothing of any errors or mistakes in the former settlement or account; he did not allude to it; he said he intended to prosecute, and he let him (witness) know first about it; the $500 paid, witness, for his risk, was by the agreement of both parties.
    Being again cross-examined, he says that at first there was no specific sum agreed on for his risk; the $500 was agreed on some time during the progress of the dissolution ; witness proposed to take a portion of the profits, or a specific sum, and complainant said it had better be a specific sum, and then witness proposed this amount, and it was agreed to; nothing said about conditions; thinks both were present, and that it was in the shop, and before the final separation; they agreed to it cheerfully, particularly the complainant.

      Exhibit No. 1.
    Received, New Brunswick, September 17th, 1841, of Peter C. Onderdonk, three hundred and thirty-five 50-100 dollars, in full of all demands, dues, and debts, accruing to me out of the late firm of Hutchinson & Onderdonk, as far as they have been paid, errors excepted.
    $335.50-100. Hiram Hutchinson.
    Exhibit No. 5.

      Hutchinson & Onderdonk,

      To Peter P. Runyon, Dr.

    June 15th, 1837. To Bond..................................$4,064 88
    Interest to May 1st, 1841............ 1,030 60
    March 1st, 1840, Amount of book account, including
    interest, as per bill................... 1,781 31
    Interest to May 1st, 1841.............. 124 67
    July 1st, 1840. His share of the profits................ 500 00
    Interest to May 1st, 1841............. 25 00
    Johnson’s account, rent and interest 8 40
    $7,534 86
    1840. Or.

    March 1st. By book account, including interest to
    that time, as per bill....$3,785 92
    Interest to May 1st, 1841, 272 74
    Cash paid in N. York..... 36 00
    Interest to May 1st, 1841, 2 88
    $4,207 54
    $3,327 32
    Jau’y 18th, 1841. By cash paid P. C. O...... $310 00
    Interest to May 1st......... 5 27
    March 1st. By cash........................ 300 00
    Interest to May 1st........ 3 00
    March 11th. By cash....................... 50 00
    Interest........................ 41
    By cash...................... 100 00 April 21st.

      Interest....................... $0 16
    March 3d. By cash....................... 30 00
    Interest....................... 28
    April 26th. By cash....................... 400 00
    May 7th. By cash....................... 500 00
    $1,699 12
    Balance due P. P. Runyon, May 1st, 1841....$1,628 20
    Interest to June 1st, 1841......................... 8 14
    $1,636 34
    Received, June 1st, of Peter C. Onderdonk, the above in full.
    Peter P. Runyon.
    On the 31st of May, 1843, the master reported as follows : I find that the defendant, subsequent to the dissolution of the partnership, received of the debts and effects due and belonging to the late firm, $5603.13, as appears by Schedule No. 1, annexed ¿ that this sum embraces all the moneys and effects of the said partnership, which came to the hands of the defendant, or might have been received, but for his willful neglect, and also all moneys and effects of the said firm, for which the said defendant should be made accountable. That the said Schedule No. 1 embraces a list of all the accounts and notes specified in the bill, answer and schedule thereto annexed, in the charge filed with the master, and in Exhibit D on the part of the complainant, being a receipt of the defendant for the amount of the notes of the firm taken by him to collect, and also of the moneys of the firm not specified in said schedules, and receipts that have been collected by the defendant, as admitted by him or proved by the evidence, except such notes as were divided by the mutual agreement of the parties, and such accounts as were taken by the complainant to be collected at his risk, without accounting for the same to the defendant, as agreed upon by the parties before the master, as will more fully appear in the evidence hereto annexed.
    That the defendant filed with the master his discharge, hereto annexed, and that I find that the defendant has paid out of the moneys received by him belonging to the said firm for debts due by the firm, and other just allowances, the sum of §4640.69, as will more fully appear by Schedule No. 2, hereto annexed, which embraces all the items contained in the schedule annexed to the defendant’s answer, and claimed by him as discharges, except the following items, (stating several small items.) In the settlement of the account of Peter P. Runyon, Esq., much difficulty has arisen from the different modes of calculating the interest» The account, as made out by Judge Runyon, appears to have been based upon a statement made by the complainant, in which the account is made out in the mercantile method, by calculating interest on the several items of debt, and crediting it up to the time of settlement. Although this method of computing interest is objectionable, and on a simple bond or note with the interest paid annually at seven percent., the payments and the interest thereon would more than exhaust the entire debt io twenty years, (Hoffman’s Master 360,) yet inasmuch as the parties have sanctioned that mode of calculation, under the authority of Stoughton v. Lynch, 2 Johns. C. R. 213, it might be recognized in this case j but Judge Runyon had a bond running on interest against the firm at the same time with the account, and to prevent the benefit to him of the annual payment of interest, while the account of the firm was drawing interest, he calculated compound interest on the bond, thereby charging §85.50 more than the simple interest on the bond. As the master was not aware of any principle by which this could be allowed, it is rejected. The defendant has exhibited a statement and calculation hereto annexed, as Schedule No. 3, by which the difficulty is said to be in a great measure overcome. As this calculation is not agreed to by the complainant, nor sanctioned by any adjudicated authority, and la moreover composed in part of compound interest on the one side, while no interest is reckoned on the other side, the whole calculation and result has been rejected ; but is herewith reported that the defendant may have the benefit thereof before the Chancellor. To obviate the difficulties as far as possible in this account, the master has deemed it advisable to re-calculate the whole amount upon the principle laid down in Meredith v. Banks, 1 Holst. 408, by applying the payments in the first place to pay off the interest, and then to liquidate the principal; and there being a running account on each side, as well as a bond due from the firm tó P. P. Runyon, the accounts are in the first place taken to balance each other without interest, and the overplus taken to pay off — first, the interest, and then the principal of the bond, making rests wherever the overplus of payments exceeds the interest due on the bond. This method is pursued until the 11th of July, 1839, when the credits in the accounts exceed the payments, and the interest is calculated from that time on the balance remaing due on the bond, also on the balance of the account from the close, and also on the sum of $500 from the time it was agreed to be paid up to the time when the payments by the defendant exceeded the entire interest, viz., January 1st, 1841; and the usual method of deducting the payments and calculating interest on the balance is then pursued, until the whole claim is finally liquidated, as will more fully appear by Schedule No. 4, hereto annexed, as part of this report. This method lessens the amount of the claim of P. P. Runyon, $38.79, and changes the final payment from $1545.46 to $1505.67.
    The payment of $500 is allowed as a compensation to Judge Runyon for his risks in endorsing for the firm and supporting it through difficulties upon the agreement of the parties as proved. Judge Runyon might no doubt have at the time appropriated any of the payments to the interest at the time due on bond, instead of suffering them to be entered in the account current, and so might the firm have done. 1 Pick. Rep. 332; 7 Wheaton 332: 9 Cow. 409; 8 Wend. 403, &c., &c. But where both omit to make such appropriation at the time, it is the duty of the court so to appropriate them as to do justice to the parties as far as possible, without violating any settled principle.
    The defendant claims a commission of five per cent., which is not allowed by the master. The evidence goes to show that the defendant was engaged in settling up the business of the firm •about six months, and has a fair claim for compensation, if the rules of law permitted compensation to one party of a firm for extra services, without an express agreement; but as the principle against such allowance seems well settled, (1 Vesey & Beam 168; 1 J. C. R. 157; 3 P. Wms. 249,) the claim is rejected; though the attention of the master was called to the case of
      Bradford v. Kimberly, 3 J. C. R. 431, to prove an exception to the rule, which the ease itself fully recognizes ; and the exception, if one it be, is this, that, when the joint owners of a vessel appoint one of themselves to receive and sell the cargo, he is to be considered in the light of a “ stranger,” as a “ commission merchant,” and entitled to remuneration upon the implied agreement $ chis is not a ease of general partners, where one of them has settled up the concerns or done other extra service, but of joint owners, engaging one of themselves to act as a commission merchant for the owners, being, in fact, a distinct business from that of the joint parties; besides, in this case, so far from there being an agreement, express or implied, the defendant, by his deed of dissolution of the 18th of June, 1840, agrees to pay ov^r to the complainant the one-half of the surplus arising from the debts and credits of the concern, without making any reservation for commissions or other remuneration.
    Taking into account the charges and discharges of the defendant, as heretofore stated, the balance duo the firm on 17th of September, 1841, when a partial settlement was effected, I find to be $962.44, as follows:
    Amount of charges................................ ......... $5,603 13
    Amount of discharges...................................... 4,640 69
    Balance..
    The one-half of this was due to the complainant, of which sum I find by the evidence the sum of $378.69 was paid to him on the 17th of September, 1841, leaving the amount to stand thus:
    One-half of the balance $481 22
    Paid, Sept. 17th, 1841. 378 69
    .Leaving a balance of......................................... $102 53
    Interest thereon from the 17th of Sept., 1841, to the 31st of May, 1843 10 48
    Total due this day............................................ $113 01
    No other interest is charged against the defendant, because the business appears to have been fairly and expeditiously set-tied, and the money was paid out as soon as received, or within a reasonable time after.
    Joseph F. Randolph, M. Q: 0.

    The complainant and defendant, by their respective solicitors, filed exceptions to the foregoing report.
    Among the exceptions taken by the complainant, are—
    1st. For that the said master hath given credit to the defendant for $378.69 paid to complainant: whereas credit should have been given for $335.69 only, as is shown by defendant’s vouchers and his answer.
    2d. For that the said master hath allowed to the defendant a credit for $500 and $15 interest, alleged to have been paid by him to Peter P. Runyon.
    One of the exceptions on the part of the defendant was, that the master made no allowance to him by way of compensation for his services in settling the business of the firm.
    P. D. Vroom, for the complainant.

      J. Vandyke, for the defendant. He cites 3 John. Ch. 431.
   The Chancellor.

There is nothing said in the deed of dissolution about allowing Mr. Runyon $500, either as a share in the profits, or for his risks in endorsing for the firm. By the terms of the deed of dissolution, the defendant was to collect the claims and pay the debts, and pay over to the complainant half the surplus. This $500 now claimed by Mr. Runyon, and allowed him by the master for his risks in endorsing for the firm, was certainly not a debt.

Again, on the final separation, the defendant, as he admits in his answer, was still to collect, and pay the debts, and pay over to the complainant half the surplus. In this part of the answer he says he was to pay over after making proper deductions and payments.

There is nothing said in the answer about this $500 to be allowed to Mr. Runyon. The general words, “after making proper deductions and payments,” and an item in the schedule annexed to the answer, of the date of May 1st, 1841, “Paid P. P. Runyon on his account $500,” are the only matters in the answer that can have any reference to this $500 allowed to Mr. Runyon for his risks.

The receipt given by the complainant, on the 17th of December, 1841, is not relied on as proof of final settlement and discharge, for the parties have agreed to go into the account, and it was agreed that a reference should be made to a master to state the accounts.

This allowance to Mr. Runyon, if made, must be made on the sole ground of what Mr. Runyon himself says about it. He was called by the defendant. Nothing is said about it in his principal examination. On cross-examination, he says he expected some remuneration for his risks, independent of his interest money, if the experiment was successful; that there was no distinct bargain about it — it was cheerfully awarded.

Being again examined on the pari of the defendant, he says the $500 paid him for his risk was by the agreement of both parties.

Being again cross-examined, he says that at first there was no specific sum agreed on for his risk; the $500 was agreed on some time during the progress of the dissolution. That he proposed to take a portion of the profits or a specific sum ; that the complainant said it had better be a specific sum, and he, the witness, proposed this amount, and it was agreed to j that nothing was said about conditions. He thinks both were present, and that it was in the shop before the final separation; that they agreed to it cheerfully, particularly the complainant.

It may be remarked here, that the final separation was in December, 1840; and that to Exhibit No. 5, Mr. Runyon’s account against the firm, is subscribed Mr. Runyon’s receipt in full to Onderdonk, dated June 1st, 1841; and that this exhibit shows under date of July 1st, 1840, this charge, “ His share of the profits, $500.”

Has this $500 been actually paid by the defendant to Mr. Runyon ? If I could be satisfied that it had been, by agreement of the parties, so paid by the defendant that to disallow it would result in loss to him, I would leave the parties in statu quo ; but I am not satisfied that anything more has been done, between Mr. Runyon and the defendant, in reference to this $500, than the stating the accounts between them in a way to relieve the defendant to that extent in his accounts with the complainant. If paid, when was it paid ? No one tells us. Nor is there any direct allegation that it has ever been paid. Mr. Runyon says that, besides the bond and warrant for $4064.84, he had endorsed for the firm to about $3000; and, in another part of his deposition, he says that, after the final separation, the defendant tiad paid him between $3300 and $3400, due him from the firm. Is this $500 included in the language “due him from the firm?” Was it a debt? In another part, he says the $3300 or $3400 paid him by the defendant was in small sums of a few hundred dollars at a time, except the last, which was $1600. There is an evident tenderness in reference to the matter of the actual payment of this $500. But, under the circumstances of the case, and in view of the relation existing between Mr. Runyon and the defendant, and the remark of Mr. Runyon that he would not have done what he did, had not one of the firm been his son-in-law, I do not think I should have been satisfied to allow this charge, even if there had been evidence of a formal payment of it by his son-in-law.

The master does not put the allowance on the ground that it had been paid. He allowed it “as a compensation to Mr. Runyon for his risk in endorsing for the firm and supporting it through difficulties, upon the agreement of the parties as proved.” I think it is an agreement which, if clearly proved, the court should not aid in carrying out. It is the first occasion on which I have heard it claimed that one is to be allowed, by a court, compensation for endorsing for another. If he had advanced the money, instead of endorsing notes, he could have but legal interest. To my mind, the sanction of such a charge would furnish a cover for exorbitant charges, in effect usury, and that not on money advanced., but on mere liabilities incurred. It would be a mischievous precedent to allow such a charge. This exception of the complainant is therefore allowed.

Next, as to the other exception on the part of the complainant.

The master has charged the defendant with the

amount received by him.............................. $5,603 13

And credited him with amount paid by him......... 4,640 69

And has struck the balance here of.......,............. 962 43

The report then divides this balance and says one-

half of it is due complainant.......................... 481 22

And then says that it appears by the evidence that on the 17th Sept., 1841, $378.69 was paid by the defendant to the complainant, and deducts it.. 378 69

And strikes a balance against the defendant of...... $102 .53

The answer says, that on the 17th September, 1841, the defendant paid to the complainant $335.69, and that the complainant admitted he had received $43 from debtors of the firm, on accounts-with which the defendant stood charged in the inventory, which $43, added to the sum actually paid, made $378.69.

It does not appear that in the master’s charging side of the account, the defendant is charged with the accounts from which the $43 was collected by the complainant; but, if I understand it, the defendant is charged by the master only with the moneys actually received by him. The master says that he finds that tiie defendant received, subsequent to the dissolution, of the funds and effects due and belonging to the firm, $5603.13, as appears by Schedule No. 1, annexed to his report; that the said sum embraces all the moneys and effects of the partnership which came to the hands of the defendant, and all the moneys and effects of the firm for which he should be made accountable; that Schedule No. 1, annexed to his report, embraces, &c., (see the first part of the report.) Now, Schedule A, annexed to the bill as an account of the assets of the firm at the time of the dissolution, amounts to $8147.41; and Schedule B annexed to the bill as an account of the moneys received by the defendant from the assets, amounts to but $5589.91. I do not see from this that the $43 was received by the complainant from accounts with which the defendant remains charged.

The answer gives a list of names, with the amount due from each, which the defendant says he was not able to collect, and he takes credit for them, and then says :

Leaving in the hands of the defendant claims which have been collected, to the amount of........................... $5,469 87.”

He then admits that since the making of the inventory, he has collected and received the following items not included in the inventory, (giving names and sums,) amounting to $117.33. And then adds, “ which, added to the amount in the hands of the defendant as last above stated, makes the sum of $5587.20,” which sum, it will be perceived, is within $2.71 of the amount of said Schedule B, annexed to the bill as an account of the moneys received by the defendant. It seems from this that the defendant has only charged himself with the moneys actually received by him, and why should he charge himself with more ?

The master has charged him with but $5603.13, being but $16.93 more than the defendant has charged himself with having actually received. What this additional $16.93 is for, would, I presume, be discovered by a particular examination of the report, but this is not necessary; it is not the $43 received by the complainant. And I do not see that the defendant, as the account is stated by the master, is charged with the accounts from which the complainant received the $43. If it can be shown that he is, there can be no objection to his doing so.

To make the account correct, in the master’s mode of stating it, one of two ways may be taken: either to add the $43 to the whole amount of receipts, which will show the amount to be divided between them, and let the $43 go towards the complainant’s half, as already received by him, or, to deduct from the balance, $481.22, struck by the master, the $335.69, and half of the $43.

This exception on the part of the complainant is also allowed. The exception on the part of the defendant, that the master has made no allowance to him by way of compensation for his services in settling the business of the firm, is, I think, well taken. I shall direct the allowance of 3 percent, on $5603.13, and that he be credited therefor, and that the balance in his hands be then struck, which will be the same as deducting half of the commissions from the complainant’s half of the balance struck.

Reversed, 2 Hal. Ch. 632.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    PLINY B. FULLER v. CHARLES TAYLOR.
    1. Injunction allowed, and receiver appointed, on bill by an execution creditor.
    2. An answer of a defendant, to a bill for discovery, &c., by an execution creditor, that he has no property of any kind, will not prevent an order referring it to a master to appoint a receiver, and directing the defendant to deliver to such receiver his property and effects, on oath before the master.
    Bill filed March 20th, 1847, by JPliuy B. Fuller against Charles Taylor, after judgment at law and execution thereon returned unsatisfied, to compel the discovery of auy property belonging io said Taylor, and to prevent the transfer of any such property, or the payment or delivery thereof to the said Taylor, and praying injunction and a receiver.
    On the reading and filing of the bill, an injunction was granted.
    On the 7th June, 1847, a motion was made, on notice, for an order that it be referred to a master to appoint a receiver, and that the defendant deliver over to such receiver his property and effects, on oath before the master.
    On the hearing of the motion, an answer of the defendant to the bill, was read.

      Wm M. Soudder, for the motion,
    read the statute approved March 20th, 1845, entitled “A supplement to an act respecting ¿lie Court of Chancery.” Rev. Stat. 921. He said it was similar to the statute of New York, on the same subject, and cited 4 Paige 575; 7 Ib. 47 ; 8 Ib. 588, 572.

      A. C. M. Pennington, contra,

    contended that a receiver should not be appointed, after answer denying all the charges of the bill — that, a receiver should not be appointed unless the answer shows there is property assign.
   The Chancellor.

The supplement to the act respecting the Court of Chancery (Rev. Stat. 921) provides that, whenever an execution shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, leaving an amount or balance remaining due exceeding $100, exclusive of costs, the party suing out such execution may file a bill in chancery to compel the discovery of any property or thing in action belonging to the defendant in such judgment, and of any property, money, or thing in action due to him, or held in trust for him, except such property as is now reserved by law, and to prevent the transfer of any such property, money, or thing in action, or the payment or delivery thereof to the defendant, except when such trust has been created by, or the fund so held in trust has proceeded from, some person other than the debtor himself.

That the court shall have power to compel such discovery, and to prevent such transfer, payment, or delivery, and to decree satisfaction of the sum remaining due on such judgment, out of any personal property, money, or things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery; provided, that if the personal property, money, or thing in action which shall be discovered as aforesaid, does not amount to $100, no costs shall be recovered by the plaintiff in such proceeding.

This act was passed after the enactment of the law abolishing imprisonment for debt, and is founded on the just idea that all the property of a debtor should be honestly applied to the payment of his debts, and on the further idea that, in view of the frauds of debtors in concealing and withholding property from creditors, by putting it in such shape that it cannot be reached by execution at law, the execution creditor should have the aid of a Court of Chancery to discover property and apply it to the satisfaction of his execution.

The statute is founded in morals, and is of most'salutary tendency, and the spirit and equity of it should be faithfully and rigidly carried out by the Court of Chancery. A proper exercise, by this court, of the power given to it by this statute, will tend to correct an alarming evil which, I am satisfied, was fast growing upon us, by removing the temptations to the practice of it. The dictates of morality, and even of religion, or, I should rather say, the profession of it, seemed insufficient to silence the many pleas under which an easy conscience rests satisfied in the concealment of property from creditors. A legislative provision, in the shape of power to compel the discovery of hidden property, under the sanction of an oath, was necessary to correct the evil.

The statute provides that the court shall have power to compel the discovery, and, there being no limitation of the power, the plain inference is that the statute gives all the power which a Court of Chancery can exercise according to the course of the court. And the evil to be remedied is of such a nature that this court will not hesitate to exercise its fullest power in applying the remedy.

These remarks are not made with special reference to the present case, but are intended to express the views of the court as to the power given by the statute, and the manner in which it may and should be exerted.

The question now presented is, whether an answer of a defendant, to a bill filed by an execution creditor under our statute, that he has no property of any kind, enables a defendant successfully to resist a motion for an order referring it to a master to appoint a receiver, and for the delivering over, by the defendant, to such receiver, of his property and effects, on oath before the master. I am clearly of opinion that it does not.

The order applied for will be granted.

Order accordingly.