Hart v. Hart

94 N.W. 890, 117 Wis. 639, 1903 Wisc. LEXIS 321

• Court: Wisconsin Supreme Court
• Decided: May 8, 1903
• Status: Published

Opinion

MaRshall, J.

Much unnecessary labor by counsel has been put upon this case from the outset to the present time by failing to recognize and give effect to the terms of the plain contract whereby the mere use of the mill property was contributed by plaintiff as her share of the capital of the firm of J. S. Hart & Co., and confusing the simple questions governing the accounting between the members of the firm, and the questions governing the incidental settlement of the account between the lessor of the mill property and the lessee, with numerous questions governing the settlement of the estate of J. W. Hart and the relations of plaintiff to such estate and to the mill property as life tenant. What the duties of the plaintiff were to the remainderman as regards the mill property, or what the duties of plaintiff and John S. Hart, as executors of the last will and testament of J. W. Hart, deceased, were, is not involved here, at least to such an extent as to require discussion thereof, or even mention further than may he necessary to show where the property came from that was put into the firm business, how it was disposed of, and how the peculiar manner of such disposition came to be adopted, and how the same should be charged and credited in the partnership accounting.

The first question in the natural order of things is, What were the relations of the partnership to the plaintiff under tire partnership agreement? By its terms she ‘put into the partnership business the use and occupation bf the gristmill, with the machinery, fixtures and appurtenances thereto, and with the office furniture, scales, safe and all other movable appliances in use in connection therewith, also a certain warehouse, against J. S. Hart’s time, labor, skill and attention in conducting the business of the firm, the parties to share equally in the expenses of conducting the business and in the profits, and to bear equally the losses thereof,’ the partnership relations to last from the date of the contract, October 22, 1865, till the 1st day of January, 1861, — a very plain, simple contract indeed. Plaintiff’s counsel claim that under it the firm became, to all intents and purposes, the owner of the mill property; that as regards the questions material to this case such paper was in effect a conveyance to the firm the same as if plaintiff had put the property into the partnership venture by deed in due form. Now to our minds the contract is not ambiguous in any sense, therefore we cannot legitimately apply thereto the rule of practical construction for which plaintiff’s counsel contends, or any other rule of construction; though we will say in passing that if rules of practical construction were to be applied they would work out far different results from those for which the learned counsel contend.

No principle is better understood than the one that the meaning apparent upon the face of an instrument, taking the words in their literal sense and as applicable to the subject-matter involved, no absurdity or contradiction appearing, must be taken as that of the parties, intended by them to he embodied therein; and that courts in dealing with the contract are not at liberty to add thereto or take therefrom. Boyle v. N. W. Mut. R. Asso. 95 Wis. 312, 70 N. W. 351; Johnson v. Pugh, 110 Wis. 167, 85 N. W. 641. That rule is as old as judicial construction. It is found phrased in the books in a great variety of ways, according to the notions of the authors and judges, but they all-come down to this: Where there is no uncertainty of sense there is no room for construction. There is no such uncertainty in the contract in question. Under it (1) plaintiff put the use and occupation of the mill property, as it was at the date of the agreement, into the firm business for fourteen months and nine days, against the time and accomplishments of J. S. Hart to manage the business; (2) the parties agreed to share equally in all the expenses, losses and profits of the business. The use and occupation of the mill plant was contributed by plaintiff, not the mill plant itself. One would have to twist the words used in making such contribution radically out of harmony with their plain, ordinary meaning to hold that she put in the property instead of the use of the property. There can be no mistaking the meaning of the term “use and occupation” in such a paper, — one merely dealing with real estate for a short term, creating at most an estate for years. In a correct legal sense the very idea of use and occupation of realty for less than a life, distinct from the legal title thereof, is that the holder of the latter is the landlord and the grantee of the use a mere tenant, with or without a specific agreement as to a rent charge. De Pere Co. v. Reynen, 65 Wis. 271, 22 N. W. 761, 27 N. W. 155; 18 Am. & Eng. Ency. of Law (2d ed.) 263, 269; 2 Taylor, Landl. & Tenant, 236; 2 Woodf. Landl. & Tenant, 538. If there could be any manner of doubt as to whether the term “use and occupation” was used in that sense, that doubt would be easily solved by the fact appearing upon the face of the paper that the arrangement between the parties thereto was only for about fourteen months, a time so short as to be entirely inconsistent with the idea that plaintiff intended to pnt her life estate into the venture. Again, under the circumstances the phrase under discussion was strictly appropriate to the situation the parties purposed solving by the formation of the partnership, as clearly shown by the evidence, — the payment of claims against the estate of J. W. ITart, without resort to the real property other than the use and occupation thereof, a reasonable rent charge therefor, which under the statute was applicable to that purpose by the personal representatives of the deceased and with which they were chargeable. Secs. 3823, 3923, Stats. 1898. As the whole estate belonged to plaintiff, conditionally, for life, subject to the title of the personal representatives to the personalty and to the value of the use and occupation of the realty for payment of claims against the estate and the expenses of executing the will, and subject to the further contingency, which she was interested in guarding against, that her conditional life estate in the realty might be invaded to pay claims of creditors, it was most natural that she should have, in form, in a personal way, contributed the use and occupation of the mill plant to the partnership business, and that by an understanding with the probate court the rent value thereof should be charged to her and credited to the estate, where it in fact belonged, just as was done. In that situation no more appropriate language could probably have been selected by the parties to express plainly in a few words just what they intended, i. e., that what belonged to plaintiff subject to the contingency of its being needed in the settlement of the estate, and to the estate subject to the contingency that it might not be needed for'the purpose of settling the same and would then go over to plaintiff, the use and occupation of the mill plant for a brief period should be contributed to the firm business, that necessarily to be conducted in such a way as to protect all the primary and secondary interests of plaintiff, and the personal representatives of the J. W. Hart estate as -well.

Mneh significance is attributed by the learned counsel for plaintiff to the identity of language in the will of J. W. Hart used in devising the mill property to her, with that used in the partnership contract in describing her contribution to the partnership venture, in that the words “use and occupation” were resorted to in both cases. We are unable to give to that the force which counsel urges. In the will the unmistakable purpose was to devise to plaintiff a conditional life estate in all the property, real and personal, of which the testator died possessed. In such an instrument mere form of expression does not control the manifest purpose voiced by the instrument when read as a whole. That may be, perhaps, properly said of any written instrument, but more emphatically as to wills than to written instruments in general.

It would hardly need discussion, we should say, to demonstrate that, merely because the grant of the use and occupation of realty by will creates a life tenancy with a present legal title to support it, it does not follow or even suggest that permission to use and occupy realty for a brief time certain creates an estate or tenancy of the same character. The one is a freehold estate classed as real property, strictly so called, ■with the relations and duties of life tenant to remainderman, while the other is a chattel real, an estate for years, with the conventional relations and duties of landlord and tenant. “The active manifestation of these estates,” it is said, speaking of the latter estates, “is in the conventional relation of landlord and tenant or- lessor and lessee.” Rice, Real Prop. § 33; 1 Washb. Real Prop. (5th ed.) 76. The distinction between a life estate in realty and an estate for years, the reflations between life tenant and remainderman and those between landlord and tenant, we will not stop here to discuss, believing that, in a general way at least, they are too well understood to need more at this time than to be mentioned to clearly indicate that use and occupation for life signifies one kind of an estate with relations and duties peculiar thereto, and use and occupation for a definite time signifies a mere term for years or less and the conventional relation of landlord and tenant with duties peculiar thereto.

Applying what has been said to the contract of partnership before us, the relation of landlord and tenant between plaintiff and the firm of J. S. Hart & Co. is discovered at once. Applying it to the will of J. W. Hart, if need be, and the relations of life tenant to remainderman are as readily discovered. As the duties of one give no key to the duties of the other, the similarity of the phrase used in one instance to that used in the other has no significance whatever.

Iiaving determined the relations of the firm of J. S. Hart & Co. to the mill property, the various questions presented upon both sides as to' the manner the court stated the account between the members of the firm are not difficult of solution. We will now take up the same in detail.

The first two complaints made by the plaintiff are governed by the same principle and will therefore be considered together.

1. The expenditures made by the firm for taxes and insurance on the mill plant were held by the trial court to be chargeable to plaintiff. It is insisted that those expenses should have been charged to the partnership, first, because the life tenancy of the plaintiff was put into the business of the firm; second, because the taxes and insurance on the mill property were proper expenses of the business of the firm, which it was expressly stipulated should be borne by the parties equally. The first proposition is supported by the learned counsel for plaintiff by construing the partnership contract as a transfer of the plaintiff’s life estate to the partnership. We have already treated that adversely to counsel’s contention. The second contention, it would seem, must fall with the first. The claim that the firm became liable to keep down taxes and to keep up insurance as a life tenant of the property involves an admission that if the firm acquired only the interest of a term for years, without specific agreements as to duties to he performed, those duties do not include the payment of taxes and insurance. It is one of the distinguishing characteristics between the duties in the one case and those in the other that in the former the tenant must keep down charges upon the property, such as taxes and insurance, while in the latter those burdens are carried always by the landlord, in the absence of some special agreement to the contrary. The lessee is never liable for taxes, insurance or interest on incumbrances unless such liability forms the subject of express stipulation. These are matters entirely within the scope of the landlord’s obligations. A lessee is liable for taxes only if he so specially covenants. Shepardson v. Elmore, 19 Wis. 424. If without such covenant he is required to pay the taxes, either by law or to protect his leasehold, he may deduct the same from the rent or recover the expense of the landlord by action. The life tenant, however, where there is no covenant or provision to the contrary, must keep down all charges upon the property necessary to preserve the same for the remainderman. Phelan v. Boylan, 25 Wis. 619; Wood, Landl. & Tenant (2d ed.) 139, 954, 968; Taylor, Landl. & Tenant (5th ed.) §§ 318, 341.

But, says the learned counsel, if it be conceded that the effect of plaintiff’s contributing the use of the mill plant as her part of the partnership capital was to create the relation of landlord and tenant, it does not necessarily follow that the taxes and insurance did not become a legitimate expense of the firm business within the meaning of the partnership contract. True, they became such if that was the intention of the parties thereto, with this modification of counsel’s statement, that nothing short of clear evidence, within the rules of law on the subject, will establish such intention. There is no such agreement shown in this case. The only agreement between the parties was embodied in the partnership contract. That is entirely silent on the subject. The use of the general language requiring the parties to share equally the expenses of the business only carried into the contract the obligation that would have existed by implicar tion without any mention of it.

Rot only the language of the contract but all the operations under it show that one member of the firm at least had no idea that taxes and insurance on the mill plant were legitimate firm expenses. The firm took credit for the expenditures for such purposes as they were made, from first to last, and such treatment thereof was disturbed upon the hearing before the referee by adopting the view now urged as to the meaning of the partnership contract, basing such adoption in part on evidence of Mrs. Hart as to how she understood the paper. The court, in a proper case, can look to the acts of parties under a contract in aid of its construction. It cannot do so when the contract is perfectly plain. An attempt then to construe is in fact an attempt to change. Travelers’ Ins. Co. v. Fricke, 94 Wis. 258, 68 N. W. 958; S. C. 99 Wis. 367, 74 N. W. 372, 78 N. W. 407; Milwaukee Co. v. Isenring, 109 Wis. 9, 27, 85 N. W. 131; Minnesota S. Co. v. McCrossen, 110 Wis. 316, 321, 322, 85 N. W. 1019. Probably no rule is better understood than that the opinions of the parties to the contract as to what they took it to mean cannot be resorted to, either to explain or change it. Boden v. Maher, 105 Wis. 539, 81 N. W. 661; Johnson v. Pugh, 110 Wis. 167, 85 N. W. 641; Milwaukee C. Asso. v. King F. & M. Co. 112 Wis. 647, 88 N. W. 598; Northern T. Co. v. Snyder, 113 Wis. 516, 89 R. W. 460.

Counsel for plaintiff make the suggestion that only the net use of the property was put into the firm business, which argues that it was not supposed she would be required to pay any insurance burdens. It is not easy to understand how the firm could have enjoyed the net use unless some one else paid the difference between tbat and gross use. A landlord grants bis tenant net use, and for tbat reason is charged with taxes and insurance. When it is admitted tbat the net use was contributed, it is not perceived why complaint is made because the contributor is charged with taxes and insurance. The argument of the learned counsel seems out of harmony with his assignment of error. Tbat appearance is not changed by bis illustrative authority. Helmer v. Yetzer, 92 Iowa, 627, 61 N. W. 206. There the firm of A., A., G. & Y. contracted with H. to buy live stock for them, the understanding being tbat the latter should be allowed, as compensation for bis services, one half of the profits that might accrue to Y. as a member of the firm. The business was conducted by the use of borrowed money. Interest thereon was charged as firm expense, thereby affecting the profits to be distributed. It was held that the manner of charging the interest was proper, as it was a part of the legitimate business expense of the firm, and that TI. could not stand in any better position than Y. It was suggested in support of the contrary view that the firm might as well have charged up to expense rent upon their packing house, but the court said obviously not so, because whereas the firm borrowed the money for use it did not rent the packing house; it owned the same. Applying that to this case, whatever was necessary to carry the burdens incident to what the firm owned was legitimate firm expense. As the firm owned only a leasehold interest in the mill plant, — the mere use thereof free from tax and insurance burdens, — the expenses of carrying such burdens belonged to the plaintiff, the landlord.

2. The next complaint of the plaintiff is because .she was charged the expense of constructing a new building in place of one that was burned down. Since in the plan of accounting embodied in the judgment she was given the benefit of the insurance money received on account of the burned structure in excess of the expense of the new one, we see no reason why this subject needs attention. We do not understand that the assignment of error covering the same was presented for serious consideration except in the event of its being held that the insurance account should have been charged to the firm. As we hold otherwise,. it is not material how the insurance money and the new building account should, strictly speaking, have been handled, since in the final result plaintiff, while being charged with one was credited with the other, and so was not harmed.

3. On defendant’s appeal error is assigned because expenditures for repairs, other than those incident to operating the mill as it had been customarily operated immediately before the firm took possession thereof, were not charged to the plaintiff as betterments. To support the contention that they should have been so charged, counsel cites Braun’s Appeal, 105 Pa. St. 414; Dunnell v. Henderson, 23 N. J. Eq. 174; Goepper v. Kinsinger, 39 Ohio St. 429 ; Warren v. Raben, 33 Neb. 380, 50 N. W. 257. Very many authorities of that kind might be mentioned, but it will be seen they do not support counsel’s proposition. The first ease is to the effect that in keeping partnership accounts, where the amount the managing partner is entitled to receive for-services is contingent upon net profits, expenditures for betterments should be charged to the appropriate property accounts as part of the partnership capital and not to gross income. The question of whether expenses upon leased property should be charged to the lessor was not even remotely involved, nor any similar question. In each of the second and fourth cases there was an express agreement involved, covering the subject of charging repairs and betterments to the landlord. In the third case the question was whether improvements of a permanent character, put upon leased property by a partnership lessee, such premises being the property of a member thereof and there being no proof that the firm paid for such improvements, should be deemed partnership property as to creditors of the firm, and the decision was in favor of the lessor of the premises. Plainly that does not touch the question here presented.

Now this familiar rule seems to foreclose defendant from any reasonable ground to complain because the repair account, permanent improvement account, and fixed machinery account were not charged to plaintiff: A tenant, in the absence of some clear agreement to the contrary, is conclusively presumed to have taken the leased property and agreed to enjoy it, as regards claims upon the landlord, as it was when the tenancy commenced. If he makes any additions, by way of fixtures or otherwise, to the property during the tenancy, in order to improve the value thereof for his use, regardless of whether a permanent addition to the value of the freehold or the landlord’s interest in the property results, without some agreement to the contrary, binding upon the landlord, the benefit after the term goes to the landlord without compensation to the tenant, unless the additions to the property are such that they can be removed during the tenancy without injury to the realty, and they are so removed. After possession of the property by the tenant ceases he cannot, without the landlord’s consent, re-enter to remove therefrom any additions made thereto by him, and in the event of his removing any such additions during the existence of the tenancy to the damage of the realty he is liable therefor. Fitzgerald v. Anderson, 81 Wis. 341, 51 N. W. 554; Platto v. Gettelman, 85 Wis. 105, 55 N. W. 167; Josslyn v. McCabe, 46 Wis. 591, 1 N. W. 174; Second Nat. Bank v. O. F. Merrill Co. 69 Wis. 501, 34 N. W. 514; Keefe v. Furlong, 96 Wis. 219, 70 N. W. 1110; Mueller v. C., M. & St. P. R. Co. 111 Wis. 300, 87 N. W. 239; Kelley v. Border City Mills, 126 Mass. 148; Taylor v. Townsend, 8 Mass. 411. There being no claim here that there was any express agreement of plaintiff to pay. for repairs or betterments put upon tbe mill property by tbe firm, or any agreement at all in fact on tbe subject, tbe accounts under discussion were not properly chargeable to ber.

4. Attention is called in tbe brief of counsel for defendant to a list of items aggregating $512.02 gathered from tbe repair account of $4,829.01. We are unable to find tbat there was any specific exception taken to tbe findings as to such items, and therefore objections to the court’s treatment thereof cannot be considered. Tbe exception goes to tbe entire account of $4,829.01 and all tbe items therein, while no complaint is made as to tbe greater part thereof. If it was desired to preserve an exception to a few items in tbe account, or any number of items less than the whole, the balance being-admitted to be correctly charged, an objection should have been taken specifically pointing out the particular items objected to. Warner v. Cuckow, 90 Wis. 291, 63 N. W. 238; Bailey v. Costello, 94 Wis. 87, 68 N. W. 663; Ingersoll v. Seatoft, 111 Wis. 461, 87 N. W. 460. The general exception covered the controversy as to whether tbe account as a whole was chargeable to tbe firm. Tbat is all.

5. Complaint is made because items charged against plaintiff upon the books of tbe firm, aggregating $10,000, for rent, and credited to tbe J. W. Hart estate account, were held to have been improperly so charged and credited and were accordingly cross-entried, plaintiff being given credit and tbe J. W. Hart estate debited. The undisputed situation seems to be this: Plaintiff at tbe outset assumed tbe right to turn tbe use of the mill plant over to tbe firm of J. S. Hart & Co., though the value of such use, in fact, for the time being, was an asset of tbe estate in the bands of tbe personal representatives of J. W. Hart, for the purpose of paying claims allowed against bis estate. Secs. 3823, 3923, Stats. 1898. Under those circumstances, obviously, tbe only way she could have rightfully put tbe use of tbe mill plant into tbe firm as she did, was either to herself pay tbe value of tbe use to tRe estate, or have the firm pay it for her account. It was deemed best for her interests and for the interests of the estate that the mill business should be continued, and that the personal property of the estate in use and for use in connection with such business should be taken into the firm and credited as fast as available as cash assets and to have the firm assume the payment of the estate debts, charging disbursements in that regal’d against such credits. That way of handling the settlement of the estate, though somewhat irregular, was entered upon and pursued to the end in good faith with the approval of the probate judge and to the evident advantage of plaintiff. The personal estate of J. W. Hart, deceased, thereby became, in effect, firm property, and was used for the legitimate purpose of settling the estate. The estate account was merely a convenient conduit through which to put the matters of debit and credit which actually should have been kept by the executors as matters entirely separate and distinct from the firm in form as well as in fact. They were so kept in effect. All available assets of the estate applicable to the payment of claims against it, including the value of the use of the mill plant at $2,500 per year, were credited to the estate upon the books of the firm, plaintiff being charged with the rent because the use of the mill plant had been appropriated by her as part of the firm capital, while the same was an asset in the hands of the personal representatives of J. W. Hart for the payment of debts against the estate. It was necessary under the circumstances, it will be readily seen, to handle the matter as it was handled in order that the rentable value of the property might be set aside for use so far as necessary for legitimate estate purposes. The county judge was a party to the plan adopted, and it was executed with his approval, as we have said. While plaintiff was charged with the rent, since she was to all intents and purposes the owner of the estate, subject to the allowed claims against it and the expenses of executing the will, she got the full benefit of every dollar of tbe debit charges by a corresponding credit in the estate account. Mr. Hart testified that his understanding was that everybody concerned was satisfied with the matter, and, as to the county judge*, that he directed that the value of the use of the mill plant should be set aside as it was; that the estate account was treated as representing the interests of creditors of the estate primaifily, and secondarily those of Mrs. Hart, so that when she was charged in one account she was in effect credited in the other. After the absolute time allowed by statute for settling the estate, application was made to the probate court for an extension of time to pay allowed claims, in which plaintiff joined, showing that the income of the mill property for such payment was being made available at the rate of $2,600 per year. The additional time petitioned for was allowed on the showing so made. On that state of the case we axe unable to perceive upon what legal or equitable principle it was found necessary or proper to take the rent charge out of the plaintiff’s account as it appeared upon the books of the film and charge the same back to the estate account. We may reasonably assume that it would not have been done if the effect hereafter noticed had been appreciated. The income of the property-belonged just where it was originally placed, sinee'the mode of handling the estate matter met the approval of the county judge. Every dollar of the value of the use of the property, it will be easily seen, in the manner tire account was kept, was bound necessarily, in the end, to reach the proper owner, — to go to the creditors of J. W. Hart or to pay the expenses of executing his will primarily and if required for that purpose, otherwise to go back to plaintiff. After the whole affair as to every one interested in the estate, except plaintiff, was closed, it was manifestly wrong to charge and credit back the rent, — to thereby bring the estate in debt to the firm whereas it was in fact in credit, and to then treat the debit balance against tbe estate as a loss to the firm whereas there was ample property of the estate to pay the debt. The prejudice in this to J. S. Hart will be made to fully appear in what follows.

6. By the trial court’s corrections of the accounts of the firm, when they were ready for closing and striking a final balance as between the parties thereof, there was a debit balance against the estate of J. W. ITart of $3,320.97. That was created, as before indicated, by charging the estate account with the items of rent aggregating $10,000 and crediting the same to plaintiff. If there was in fact the sum of $3,320.97 due the firm from the estate and it had been known before the final closing of the estate, it could readily have been collected. It undoubtedly would have been collected, thereby, by so much, reducing the property which ultimately came to the possession of the plaintiff. Before such indebtedness, so called, was- brought to light by the peculiar system of accounting adopted by the referee and sanctioned by the court, the entire residue of the estate property had passed to the possession and enjoyment of plaintiff. The effect of closing the debit estate account by charging the same to profit and loss resulted, necessarily, in increasing plaintiff’s ultimate credit balance by half of the charge, and increasing J. S. Hart’s debit balance by a corresponding amount. That is, instead of the whole amount of the indebtedness of the estate coming to the firm as a cash asset from the property of the estate, it was needlessly treated as a loss and Mr. Hart was made to bear half of it. Defendant very properly complains of that. In our judgment it does not admit of serious discussion that the debit balance credited against the estate by the system of accounting in the court below was wholly fictitious; that the disposition of the same was made either through a misconception of the legal and equitable rights of the parties or of the prejudicial effect thereof upon Mr. Hart, and possibly of both. The debit balance should be restored and then paid out of the item of rent which should be charged back to plaintiff and credited to the estate account. The method adopted, of turning an asset of the firm into a loss at the expense of one member of the firm and a gain to the other, is strongly illustrative of the care that should be taken in settling partnership accounts.

Objection is made to a credit of $450 to plaintiff. That is claimed to have been an arbitrary reduction of her debit balance to the firm. The suggestion is made that it represents the amount of the separate inventory of allowances made to plaintiff in the settlement of her husband’s estate. No intelligent explanation has been given why it should be considered that plaintiff directly or indirectly delivered to J. S. Hart & Co. the special allowance made to her out of her husband’s estate, or why it should be considered that, if she did, she did not at the time receive the proper credit. If she put that property into the firm it seems she must have got credit for it. If she did not put it into the firm she is not entitled to credit for it merely because she and her associate executors were responsible for the assets of the estate. In no way that we can imagine could the estate be legitimately brought into debt to plaintiff on account of that matter. Counsel for defendant say there is nothing in the record to justify the court’s action, and counsel for plaintiff fail to point out any warrant for it or even to make a suggestion which to our minds, if true, justifies it.

Further objection is made to the allowance of interest to plaintiff from the date of the referee’s report, November 22, 1898, since that was not the date of the final adjustment of the balance found due plaintiff, the final balance not having been arrived at till June 27, 1900. The objection is intensified in significance by the fact that upon this appeal radical changes have been decided upon in the accounts which must bring the date of the determination of the final balance down to that of the decision of the case here. It is undoubtedly the true rule that, except in special circumstances, interest is not to be allowed upon partnership accounts as between partners until the final balance is stated, in the absence of an agreement between the parties to the contrary. Marsh v. Fraser, 37 Wis. 149; Gilman v. Vaughan, 44 Wis. 646. We think, under all the circumstances, that rule should govern in this case; that there are no special circumstances varying the general rule.

Further objection is made because full costs were taxed in favor of plaintiff. The matter of costs in such a case rests in the sound discretion of the trial court under some general established rules as to what is equitable in such matters, and subject to review for abuse of judicial authority. Gilman v. Vaughan, supra. Sec. 2918, Stats. 1898. If the judgment complained of were to be affirmed on the merits, the decision below as to costs would not be disturbed. However, the aspect of the case now is so changed from that apparent to the trial court that it is by no means certain or even probable that such court would give full costs to the plaintiff if the matter were to be decided there. As the case stands it is a very proper one for a division of costs between the parties. No reprehensible fault is discovered in the conduct of Mr. Hart. Everything that came into the partnership business while under his charge was honestly accounted for. His manner of keeping the partnership accounts, which has been the subject of so much complaint, stands justified in a very great degree by the final outcome. It stands substantially approved, except as to the repair and machinery accounts. His conduct as to those matters may well be attributed to mere mistake of law, — one made in solving a question of such serious jdoubt and difficulty that it has taken several hearings, long litigation, and at last, upon careful presentation of the matter on both sides, a decision of this court, to finally determine. Mr. Hart was brought into court charged, among other things, with fraud, which has been wholly disproven. Many untenable claims were made against him in the complaint, which he was compelled to make answer to and to disprove. Instead of the condition of the partnership affairs having been kept from the knowledge of plaintiff as was charged, it appears that she had ample opportunity to inform herself fully; that if she did not it was not the fault of Mr. Hart. No advantage was taken of her by him by reason of his confidential relations to her in any respect. More than twenty years before this suit was commenced and before the machinery and repair accounts were charged to her, but after the debit balances were determined upon, the books were examined and a statement of such accounts made and exhibited to her. That showed due from the estate to the firm $'T,1'T'7.10, which was rightfully chargeable to the plaintiff, either directly or indirectly, as she ought to have known, and it has been now so charged. The doubt and difficulty that have caused the expense of this litigation are as much attributable to illegitimate claims of plaintiff as to such claims upon the part of Mr. Hart. On the whole at least one half of the costs of the litigation should be paid by plaintiff. "What the total thereof was cannot be told here from the record, because, whereas disbursements made by plaintiff were taxed, those made by Mr. Hart were not. We have concluded to adjust the matter without further taxation of costs by naming a sum which will in our judgment require plaintiff to pay at least one half of the entire taxable costs of the suit.

Now we restate the account between the parties in harmony with the foregoing, by starting with the credit balance in the profit and loss account, the debit balances in the accounts to partners, and the two credit, items of $50 and $160.15 to plaintiff. That gives us a trial balance sheet with the accounts as they stood before they were closed by striking the final balance between the partners, thus:

We are unable to understand why the credits of $50 and $160.15 were given plaintiff. We cannot even conjecture why the credit of $160.15 was so given. But as no complaint in respect thereto is made in the printed brief of defendant, though the matter seems to have been covered by the exceptions, we will leave the subject where we find it.

With the foregoing trial balance to start with, we correct the improper charge of the debit balance in the estate account, of $3,320.97, to profit and loss account by crediting the latter account and charging the former) We correct the error of crediting plaintiff the rent account of $10,000 and charging the same to the estate account, by crediting the latter account and charging the former. We correct the error of giving plaintiff a credit of $450, the supposed amount of the special inventory in the estate of J. S. .Hart, deceased, by charging the same back to her, giving credit to profit and loss. That is a troublesome item to dispose of. We are satisfied that it was improperly credited to plaintiff. It must have been, when credited to her, charged to some other account, or otherwise the accounts as a whole would be out of balance. We have concluded that it is most probable that it should go to profit and loss. We find no evidence that it was charged to the estate. It- evidently did not represent property actually turned over to plaintiff which was in the hands of the firm and with which she was charged, because it seems plain that the special allowance of property was delivered to plaintiff early in the settlement of the estate and did not come out of property with which the estate was credited on the boohs of the firm. The corrections of the debit and credit charges as indicated take this form:

Using a form more condensed than one technically correct, for greater convenience, we now post snch work and balance the accounts ready for final closing between the partners, as follows:

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" width="1147"/>

We now dispose of tbe estate account by crediting thereon an amount equal thereto, giving plaintiff credit for a corresponding amount, and dispose of the profit and loss account in the ordinary way by crediting one half thereof to each of the partners and charging to profit and loss corresponding amounts in this form:

We now post that work into the proper accounts and bring them to a balance in this form:

Showing, as a final result, that plaintiff has a credit balance of $1,824.54, and that there is a debit balance against the J. S. Hart interest of a corresponding amount. She is entitled to judgment for $1,824.54, with interest thereon from the date of the filing of this opinion and an equitable portion of the costs of the litigation, which we fix at $75. Defendant should have as costs in this court on plaintiff’s appeal, attorney’s fees, clerk’s fees, and only $50 for printing, and on his appeal attorney’s fees, clerk’s fees, and $7 5 for printing.

By the Oourt. — The judgment of this court is that plaintiff take nothing on her appeal and that defendant recover thereon clerk’s fees, attorney’s fees, and fifty dollars for printing. The judgment on defendant’s appeal is that the judgment appealed from be and is hereby modified by changing the words and figures for damages therein “three thousand seven hundred ten and 2-100 dollars ($3,710.02)” to one thousand eight hundred twenty-four and 54-100 dollars ($1,824.54) and by changing the words and figures for costs to seventy-five, dollars, and by changing the date from which interest is to be recovered on damages to May 8, 1903; and that, as so modified, the judgment is affirmed, defendant to recover on his appeal, as costs, clerk’s fees, attorney’s fees, and $75 for printing.

Dodge, J., took no part.