Hollister v. Barkley

11 N.H. 501

Opinion

Parker, C. J.*

According to the present English practice, there are two modes of taking accounts in the master’s office ; the one in the form of a debtor and creditor account, brought in by the accounting party; the other by examining such party upon interrogatories ; and these two modes are sometimes combined in taking an account. 2 Smith’s Ch. Pr. 114; Gresley’s Eq. Evid. 395. The rule in New-York is the same. New-York Ch. Rules 79, Rule 107; 4 Paige’s R. 112, Story vs. Brown. The debtor and creditor account is prepared as an affidavit, and this affidavit is a substitution for an examination, which was the manner of accounting before the New Orders. 2 Smith’s Ch. Pr. 114; Blake’s Ch. Pr. 204, 250. Oral examinations were common in New-York. 2 Johns. Ch. R. 499, Remsen vs. Remsen. But the master is still at liberty to examine on interrogatories. 2 Smith 122; New-York Ch. Rules and Orders 79.

As we have adopted no rule in this respect, either of these modes may be resorted to; but the better practice probably is to require the parties to bring in debtor and creditor accounts, and examine them on written interrogatories, the master taking down the answers. In this case, after the matter was referred to the master to state an account, instead of the modes before mentioned, the parties, by some arrangement, filed, what has been termed an amended bill, and an amended answer, and a preliminary question arises as to the effect to be given to these documents. They were not filed on an application to, or by an order of the court ; nor until after the case was referred to the master to state the account. They were filed for the purpose of enabling him to make such statement, and relate to the items of it. The amended bill charges nothing, and prays no further relief ; nor does the filing of it appear to have been necessary to the progress of the case. Under these circumstances, although there are interrogatories contained in it, we are of opinion that these papers should be regarded as no more than statements, thus far, of the accounts, by the parties, under oath ; or as their examination, on oath, furnishing materials from which the master might be aided in making up the account. The common form of a decree, referring the case to a master to take an account, contains an authority for examining the parties, (Gresley’s Eq. Ev. 395, 397,) and these documents may, as far as they go, well be regarded as part of such examination.

The remaining questions arise upon the report of the master.

In the first place he finds that one half the services of the defendant, in operating the mills, was to be paid by the plaintiff, at all events. But if the court are of opinion that the answer of the defendant, in relation to the contract of partnership, is not evidence of such a character as to require testimony equivalent to that of two witnesses to counterbalance it, the master desires to make a farther report upon this point.-—The allegation in the answer, that one half of the services of the defendant were to be paid for by the plaintiff, at all events, is responsive to the bill, (see 9 N. H. Rep. 233, 237,) and the plaintiff, to make out his case on that point, must overcome the answer by the evidence of two witnesses, or something moré than the testimony of a single witness. It is not necessary that there should be two witnesses, or matter equivalent to two. The answer being made under oath, upon the call of the plaintiff, he cannot control and defeat it by the evidence of one witness contradicting it. There must be a weight of testimony in his favor. Gresley’s Eq. Ev. 4, and cases cited. It may be referred to as a matter within the knowledge of the court, one of the members having necessarily presided on the trial, (and it has been referred to by the plaintiff’s counsel in the argument,) that the defendant has recovered a judgment at law, in his suit against the plaintiff for these services, on the ground that the plaintiff was, by agreement, personally responsible for one half of those services, as alleged in the defendant’s answer. This result is not regularly before the court in this case, nor has any reliance been placed upon this judgment at law. Were it before us on a supplemental answer, it might perhaps be found to be a bar, thus far, to the plaintiff’s claim in this case. That suit was commenced anterior to the filing of the present bill. One object of the latter was to obtain an injunction against further proceedings at law. But on the dissolution of the injunction, (9 N. H. Rep. 238,) the case at law stood in regular order for trial; and having been tried, upon the same point, the judgment must, if regularly before us, be regarded as a bar to relief here. Story’s Eq. Pl. 602, 605; Milford’s Pl. 314, [253.] We cannot, in equity, reverse a judgment regularly obtained at law, upon the ground that we think the fact to be different from what the jury have found it, or try it again upon the merits. As the matter now stands, the report must have been recommitted, if the plaintiff had desired it, because, strictly speaking, evidence equivalent to that of two witnesses is not essential. There must be, as we have seen, something more than that of one. But we now understand that the plaintiff waives any exception to the report, in this particular.

The next question relates to a claim of the plaintiff for the services of one Bidwell. The claim is disallowed; but if the answer of the defendant, relative to a settlement between the parties in 1835, is no evidence of the facts therein stated, respecting that settlement; and if the court is of opinion that the defendant had no right to prove before the master, the statements of the plaintiff, under oath, on a hearing before auditors, in the suit at law, then the master desires to submit a farther report on this point. We are not aware of any rule by which proof of the plaintiff's statements could be excluded from the consideration of the master, in making up the account. They were deliberately made, under the sanction of an oath, and nothing is disclosed, or suggested, why the defendant is not fully warranted in using the admissions of the plaintiff, made under such circumstances. Witnesses for either party may be examined before the master, or on interrogatories. Gresley’s Eq. Ev. 389. But the statements of the defendant, relative to the settlement in 1835, are contained in the amended answer, and are not, therefore, entitled to any further weight than similar statements made on an examination of the defendant before the master on interrogatories. We have seen that it is competent Tor the master to examine the parties, in taking the account. But it is said that where a party is examined before a master, in relation to his own rights in a cause, the examination is in the nature of a bill of discovery. There can be no cross examination by his own counsel, and he cannot give testimony in his own favor, except so far as his answers may be responsive to the questions put by the opposite party. But he may accompany his answer by any explanation fairly responsive to the interrogatory, which may be necessary to rebut any improper influence arising from the answer. 1 Paige’s Ch. R. 122, Benson vs. Le Roy. If the master has given to statements of the defendant, respecting this settlement, no greater weight than a stated account, with the affidavit of the party annexed, is entitled to, it is well enough. But those statements cannot have the character and effect of matter in an answer, responsive to a bill, except perhaps so far as they are answers to the interrogatories of the other party, or explanations of such answers, ( Gresley's Eq. Ev. 397; 2 Smith's Ch. Pr. 122); and if any greater effect has been given to them, the report must be recommitted. The statement of the defendant, in relation to the agreement and settlement in 1835, seems not to be responsive to the interrogatories of the plaintiff, in the amended bill, so called. Those interrogatories relate to a settlement in 1S30. Nor can they be regarded as explanatory of some matter called for by the interrogatories.

The next question is, whether the defendant is precluded, by the admissions in his answer, from showing errors and mistakes in a former settlement of accounts between the parties? To the correction of an error of 010, in the casting of the accounts, the plaintiff does not object, and that correction may, therefore, be made. But the admission of the defendant, in his answer, that the plaintiff had advanced towards the erection of the mills the sum of 0188-80, more than the defendant, must be held conclusive against him, so long as it stands as his admission under oath, notwithstanding he may have exhibited evidence tending to show that he might have made the admission under a mistake. 2 Smith's Ch. Pr. 273; Gresley's Eq. Ev. 9. The propriety of this rule is manifest. The admission may be true, notwithstanding the evidence adduced ; and if such evidence could be admitted, the defendant might, in some instances, avoid his answer, when it was strictly true ; because the plaintiff had no other evidence to offer against the evidence adduced by the defendant, except the very evidence that the proceeding in equity designed to give him, to wit., the defendant’s admission under oath. If the defendant has made mistakes in his answer, he can be relieved on a proper case made, by leave to amend, or, according to the modem practice, to file a supplemental answer. 2 Smith's C. Pr. 270.

Another question is, whether the plaintiff should be charged in the account, with sums due to the partnership from several individuals which he does not appear to have collected. There is no pretence for charging the plaintiff with any of these sums because he refused to permit them to be set off against debts due from the defendant to those who were thus debtors of the partnership. The defendant had no right to have them thus set off. As little pretence is there for charging the plaintiff with costs which accrued on one of the defendant’s debts. But it seems, from the report, that some of these demands are now barred by the statute of limitations, and that they might have been collected by the plaintiff, who had the books. Perhaps one reason why he did not attempt to collect them was because some of the debtors had claims against himself. We have found no authority, however, that will justify the court in charging the plaintiff with these demands, (as if he had collected them,) by reason of his neglect, and without an authority we are not prepared to adopt the principle. The defendant might also have instituted suits for their collection ; and if the plaintiff had then released them, or withheld the evidence, perhaps that would have been sufficient. A release would have been good evidence that he had received the amount. A receiver might have been appointed to collect the demands. 1 Story's Eq. 622. The defendant may perhaps be entitled to a division of the demands, and to receive those against individuals who have no claims against the plaintiff.

Another question is on the allowance of interest. We have held, at law, that interest is to be allowed on money due and sums liquidated. 6 N. H. Rep. 571, Mahurin vs. Bickford. Such interest is allowed in equity as is just and reasonable. New-York Ch. Rules 79. And it is just and reasonable to allow interest on all sums which are due and payable, or from the time when there should be a rest in the accounts. Annual rests may be allowed, and interest cast on those rests. 2 Smith 113. The rale in England, for the allowance of interest, in equity, seems not to be so broad as it is here at law. See 2 Smith 346. When the parties have adopted the mercantile usage of stating an interest account, and casting interest on each item, the same course may be followed by the master, in stating a partnership account. The period of the dissolution of the partnership is a proper time to make a rest, and interest is allowed on the balance. 2 Johns. Ch. R. 210, Stoughton vs. Lynch.

Footnotes

*

Woods, J., haying been of counsel, did not sit.