Lamb v. Rowan

Mississippi Supreme Court

Lamb v. Rowan

83 Miss. 45

Mississippi Supreme Court·Decided October 15, 1903·Published·Cited by 2 cases

Opinion

JohnstoN, Special Judge,

delivered tbe opinion of tbe court.

Footnotes

*

This case is here on Lamb’s appeal and Eowan’s cross-appeal from tbe final decree of tbe chancery court of Copiah county settling a partnership accounting between Lamb & Eowan, and providing for tbe sale of tbe partnership property. On April 3, 1899, E. A. Eowan began tbe suit in tbe chancery court of Copiah county for a partnership accounting and for tbe sale of the property belonging to tbe firm of Lamb & Eowan. It is stated in tbe bill that Eowan and Lamb formed a partnership in October, 1883, for tbe purpose of carrying on a sawmill business in Copiah county near tbe town of Beauregard, on tbe Illinois Central Eailroad, and that they afterwards built another sawmill and a planing mill near Wesson. Tbe business was discontinued in tbe year 1894, though there was no formal dissolution of tbe partnership. It is averred in tbe bill that large profits were made in tbe business, which was conducted directly [49] and indirectly by Lamb, and tbat on accounting Lamb would owe tbe firm not less tban $20,000, and tbat tbe firm would be largely indebted to Eowan. Lamb denied in bis answer tbat there was any partnership between himself and Eowan. Pending this proceeding tbe partnership property was placed in tbe bands of a receiver.

On tbe bearing of tbe cause tbe chancellor decreed 'that there was an equal partnership between Eowan and Lamb, as alleged in tbe bill, tbat extended to both sawmills and to tbe planing mill, and referred tbe cause to Hon. Eobert B. Mayes, as a master, to state an account between each partner and tbe firm, and also an account showing tbe gross sales of tbe lumber and tbe costs of manufacturing tbe lumber, and tbe expenses of tbe business of tbe firm. Tbe chancellor also directed tbe master to state an account of tbe capital contributed to tbe partnership by each partner. Tbe chancellor held tbat certain books of account kept by Lamb were not books of original entry, and were not admissible in evidence, designated as “P 1,” and “P 2,” and a book called, “.Expense Account.” An account which bad been rendered by Lamb to Eowan after tbe discontinuance of tbe business and designated “Eowan account,” showing a balance of $10,149.47 against Eowan, was held as admissible as an account rendered to him and not disputed by him. And a book called “Lamb’s account” was held to be admissible in evidence as’being a statement by Lamb against bis interest. Tbe ledgers showing the sales of lumber and four small memorandum books designated as A, B, O and D, were held to be admissible in evidence. Upon these books and upon a great mass of vouchers, receipts, memorandums, letters, notes, drafts, and accounts,,and tbe voluminous testimony of witnesses, filling sixteen volumes tbat constitute tbe record in tbe case, tbe master proceeded to state the accounts as directed by tbe decree of tbe chancellor.

Before proceeding to a review of tbe exceptions to tbe master’s report a brief statement will be made of this partnership [50] business. In 1883 Lamb owned and bad been operating near Beauregard for some years a sawmill wbicb is called in tbe record, “Mill No. 1.” Tbis burned in tbe fall of 1883, and in October of that year Rowan and Lamb entered into a partnership agreement as equal partners in the sawmill business, and built near Beauregard, on tbe line of tbe Illinois Central Railroad, what is designated in the record as “Mill No. 2.” This mill was completed and put in operation in July, 1884. They afterwards built another mill, known as “Mill No. 3,” about four miles from Wesson, and also a planing mill at Wesson. Tbe machinery of Mill No. 1 went into Mill No. 2, and the engine and part of tbe machinery of Mill No. 2 was afterwards put into tbe planing mill. Tbe complainant, in compliance with an order of court, filed an itemized statement of his claims against tbe firm, and subsequently filed a revised statement of account, bringing in many additional items. During tbe progress of the accounting, Lamb filed an itemized statement of claims against Rowan, including a large number 'of items of indebtedness never charged to Rowan, and not included in an account rendered to Rowan shortly before this suit was brought. Lamb managed the mill business and Rowan attended to the money matters of the firm, raising money on loans, and discounting the firm notes, the proceeds of which be turned over to Lamb for the business. Lamb, by agreement, was to keep a correct set of books for tbe firm, and tbis Rowan thought he was doing. Rowan kept no books, and relied upon Lamb to keep tbe accounts of tbe firm and of each partner in a proper and correct manner. There was no settlement of accounts between the partners during the entire existence of the partnership. Tbe books kept by Lamb are in a great state of confusion, and were irregularly and not correctly kept, with tbe exception of the ledgers in wbicb tbe account of sales were kept, and these on their face are self explanatory, and substantially reliable. It is impossible to state from these books, or from the voluminous [51] testimony and papers in the case, an account showing correctly and with a degree of accuracy the capital contributed by the partners to the firm; and it is also impossible to state with accuracy an account between each partner and the firm, nor can an accurate -account be stated showing the net profits of the business. The record indicates that the greatest care and thought has been bestowed upon the case by both the master as well as the chancellor, assisted by an expert accountant, Mr. E. M. Oook, as well as the able counsel for the respective parties to the case.

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JohnstoN, Special Judge,

delivered tbe opinion of tbe court.

Footnotes

*

This case is here on Lamb’s appeal and Eowan’s cross-appeal from tbe final decree of tbe chancery court of Copiah county settling a partnership accounting between Lamb & Eowan, and providing for tbe sale of tbe partnership property. On April 3, 1899, E. A. Eowan began tbe suit in tbe chancery court of Copiah county for a partnership accounting and for tbe sale of the property belonging to tbe firm of Lamb & Eowan. It is stated in tbe bill that Eowan and Lamb formed a partnership in October, 1883, for tbe purpose of carrying on a sawmill business in Copiah county near tbe town of Beauregard, on tbe Illinois Central Eailroad, and that they afterwards built another sawmill and a planing mill near Wesson. Tbe business was discontinued in tbe year 1894, though there was no formal dissolution of tbe partnership. It is averred in tbe bill that large profits were made in tbe business, which was conducted directly [49] and indirectly by Lamb, and tbat on accounting Lamb would owe tbe firm not less tban $20,000, and tbat tbe firm would be largely indebted to Eowan. Lamb denied in bis answer tbat there was any partnership between himself and Eowan. Pending this proceeding tbe partnership property was placed in tbe bands of a receiver.

On tbe bearing of tbe cause tbe chancellor decreed 'that there was an equal partnership between Eowan and Lamb, as alleged in tbe bill, tbat extended to both sawmills and to tbe planing mill, and referred tbe cause to Hon. Eobert B. Mayes, as a master, to state an account between each partner and tbe firm, and also an account showing tbe gross sales of tbe lumber and tbe costs of manufacturing tbe lumber, and tbe expenses of tbe business of tbe firm. Tbe chancellor also directed tbe master to state an account of tbe capital contributed to tbe partnership by each partner. Tbe chancellor held tbat certain books of account kept by Lamb were not books of original entry, and were not admissible in evidence, designated as “P 1,” and “P 2,” and a book called, “.Expense Account.” An account which bad been rendered by Lamb to Eowan after tbe discontinuance of tbe business and designated “Eowan account,” showing a balance of $10,149.47 against Eowan, was held as admissible as an account rendered to him and not disputed by him. And a book called “Lamb’s account” was held to be admissible in evidence as’being a statement by Lamb against bis interest. Tbe ledgers showing the sales of lumber and four small memorandum books designated as A, B, O and D, were held to be admissible in evidence. Upon these books and upon a great mass of vouchers, receipts, memorandums, letters, notes, drafts, and accounts,,and tbe voluminous testimony of witnesses, filling sixteen volumes tbat constitute tbe record in tbe case, tbe master proceeded to state the accounts as directed by tbe decree of tbe chancellor.

Before proceeding to a review of tbe exceptions to tbe master’s report a brief statement will be made of this partnership [50] business. In 1883 Lamb owned and bad been operating near Beauregard for some years a sawmill wbicb is called in tbe record, “Mill No. 1.” Tbis burned in tbe fall of 1883, and in October of that year Rowan and Lamb entered into a partnership agreement as equal partners in the sawmill business, and built near Beauregard, on tbe line of tbe Illinois Central Railroad, what is designated in the record as “Mill No. 2.” This mill was completed and put in operation in July, 1884. They afterwards built another mill, known as “Mill No. 3,” about four miles from Wesson, and also a planing mill at Wesson. Tbe machinery of Mill No. 1 went into Mill No. 2, and the engine and part of tbe machinery of Mill No. 2 was afterwards put into tbe planing mill. Tbe complainant, in compliance with an order of court, filed an itemized statement of his claims against tbe firm, and subsequently filed a revised statement of account, bringing in many additional items. During tbe progress of the accounting, Lamb filed an itemized statement of claims against Rowan, including a large number 'of items of indebtedness never charged to Rowan, and not included in an account rendered to Rowan shortly before this suit was brought. Lamb managed the mill business and Rowan attended to the money matters of the firm, raising money on loans, and discounting the firm notes, the proceeds of which be turned over to Lamb for the business. Lamb, by agreement, was to keep a correct set of books for tbe firm, and tbis Rowan thought he was doing. Rowan kept no books, and relied upon Lamb to keep tbe accounts of tbe firm and of each partner in a proper and correct manner. There was no settlement of accounts between the partners during the entire existence of the partnership. Tbe books kept by Lamb are in a great state of confusion, and were irregularly and not correctly kept, with tbe exception of the ledgers in wbicb tbe account of sales were kept, and these on their face are self explanatory, and substantially reliable. It is impossible to state from these books, or from the voluminous [51] testimony and papers in the case, an account showing correctly and with a degree of accuracy the capital contributed by the partners to the firm; and it is also impossible to state with accuracy an account between each partner and the firm, nor can an accurate -account be stated showing the net profits of the business. The record indicates that the greatest care and thought has been bestowed upon the case by both the master as well as the chancellor, assisted by an expert accountant, Mr. E. M. Oook, as well as the able counsel for the respective parties to the case.

There are no questions of law involved in the case of any difficulty, and the contentions of the parties arise upon a vast number of exceptions to the master’s report, which presented for the considerations of the master and the chancellor issues and questions of fact arising out of the testimony. Before reviewing those various exceptions, a second preliminary question presented by counsel for the respective parties will be considered. It is contended by counsel for Lamb that a bill for an accounting cannot be maintained, upon the ground that there was no partnership between Rowan and Lamb; and upon the further ground that, in view of the confusion of the accounts, a correct accounting cannot be had, and that in such case a bill for a partnership accounting should be dismissed. It is also contended that the claims made by Rowan against the firm are barred by the statute of limitations. We concur in the conclusion reached by the chancellor that there was a partnership agreement entered into by the parties in the year 1883, and that'it extended to the business of Mill No. 3, as well as the planing mill. While it is true that the accounts of the business are in great confusion, and that a perfectly accurate account cannot be stated between the parties, it is equally true that Lamb is responsible for this condition of things, and we therefore cannot concur with the contentions of counsel that the bill should be dismissed because of the confusion of the accounts of the firm. The master and [52] chancellor have worked out a conclusion upon all the evidence, and apparently upon tbe only attainable evidence, that approximates, as near as possible, a correct basis for accounting. Upon a careful review of all the evidence in the case it appears that the basis upon which the accounting proceeded is correct, and that the bill for the accounting was properly sustained by the chancellor.

The statutes of limitations did not run against either partner in respect to any partnership matters, or against any claim that the partner had against the firm, and pertaining to the partnership business.

It is objected by the counsel for Lamb that there could be no accounting between the partners for the reason that the capital contributed by each to the business is not stated and reported by the master as directed by the decree of the chancellor. This was an interlocutory matter, and fully outlines the power of the chancellor where the report of the master came to be heard. The chancellor found in fact that this was an equal partnership, and, while the exact amount invested by each partner is not shown, yet it appears with reasonable certainty in fact that they each contributed to the business in about equal proportions. Lamb was allowed $6,539.25 that went into'the construction of Mill No. 2. The account rendered to Rowan showed that in the first years of the partnership 'the firm was largely indebted to him. Rowan testified that he had put a great deal of money into the partnership, of which he kept no account, and which Lamb never credited him with. Upon this whole question the nearest approach to a conclusion is to accept the findings of the chancellor upon the evidence that the partnership was an equal one, and to treat the partners as they were treated by the chancellor and as they treated each other — as standing upon equal terms in respect to the capital of the firm.

Counsel for Rowan presented the objection that what are known as the “Bennett lands” are incorrectly included in the [53] partnership lands as directed to be sold by the final decree. When tbe partnership was formed, Lamb and Rowan each owned lands near the mills. These did not go into the partnership, but were retained as individual property. During the partnership lands were bought by Lamb individually, and the titles taken in his own name, and which did not go into the partnership. Rowan did the same thing. And, again, lands were bought by the firm, and the titles taken in the names of the partners, which were partnership lands., The Bennett lands — about 320 acres — were bought by Rowan, and the titles were taken in his own name.' Lamb testified that they are partnership lands, and his counsel places the claim on the theory of a resulting trust. Rowan testified that it was understood between Lamb and himself at the time of the purchase that they were his lands, and the mill was to get the timber. Rowan testified that he had paid nearly all of the purchase money, and closed a balance of almost $360 with a new note and independent security, which he has since paid in part. Lamb does not show that he made any payments on the Bennett land purchases. He did pay with money of the firm $800 to Bennett for timber for the mill, which is allowed by the master on the expense account of the partnership. This is distinct from the land matter. In view of the manner in which the titles to the different lands were taken, as above stated, and in view of the evidence, the conclusion is warranted that the Bennett lands are not partnership lands, and are not properly in the decree. It does not appear that these lands were adjudicated to be partnership lands, but are indicated in the partnership lands directed to be sold.

We concur with the chancellor in his conclusion that no interest was' to be charged in the partnership accounting.

It is contended for Rowan that the decree of reference should have directed the master to charge the gross sales of the mills on the firm account, and to require Lamb to have each item of the [54] expense affirmatively in accounting for tbe expenditure of tbe business. Tbis was done in effect. Tbe court directed tbe master to ascertain tbe gross amount of tbe sales, and then to estimate tbe expense of manufacturing tbe lumber, and to add sucb items of expense in conducting tbe business as were clearly shown, and thus ascertain tbe profit or loss. In respect to tbe personal account of tbe partners, each was to be credited with sucb amounts as be contributed to tbe firm, and tbe chancellor expressly directed that tbe burden of proof was to be upon each in tbe establishment of bis claims for credits. Tbe master proceeded throughout tbe accounting upon tbis basis. He took up tbe expense account of tbe firm, and upon tbe testimony of tbe mill experts be made an estimate of tbe mill cost of making tbe lumber, which is shown by tbe sales books. To tbis be added tbe outside expenses of tbe business so far as they could be satisfactorily ascertained.. He then took up Rowan’s account, and charged him with tbe balance of $10,149.47, shown by tbe account rendered to Rowan by Lamb, and gave Rowan credit for all items of credit which tbe evidence showed that be was entitled to. He then took up Lamb’s account, and charged him with all tbe personal items on bis account which be is shown to be entitled to, and gave him credit only for sucb items as were established by tbe evidence. Everything concerning tbe title was left to be settled by tbe proof. Tbe master made a report, which was set aside by tbe chancellor, and tbe cause was again referred to tbe master with more explicit directions, which are entirely correct. In tbe decree tbe chancellor directed tbe following credits, omitted by tbe master, to be made on Rowan’s account:

December 27, 1883. Paid to Deaton.$ 350 00

May 28, 1884. Beale Loan. 175 00

Cash: . 2 00

September 2, 1885. Paid to Lamb. 184 00

Lumber used in barn. 160 00

Paid to Sexton . 1,119 27

[55] Tbe following aggregate amounts are shown by the master’s final report:

Total sales of lumber .$ 181,030 95

Lumber received by the receiver . 707 76

One wagon sold by the receiver. 47 50

Three yoke of oxen and wagon . 230 00

One ox . 7 00

To balance due receiver . 1,368 92

Total .$ 183,392 13

Total amount of expenses. 164,644 28

Net profits .$ 18,747 85

Rowan’s account, as shown by the master’s report, is as follows:

Debit balance as per account rendered'.$ 10,149 47

Items not included in the account rendered. 6,209 06

$ 16,358 53

Credits . 11,456 29

Balance due the firm .$ 4,902 24

H. N. Lamb in account with Lamb & Rowan:

Debits .$ 8,685 09

Credits . 6,539 25

Balance due to Lamb & Rowan.$ 2,145 84

On the hearing of the exceptions to the report the chancellor made the following correction and changes in the master’s report in expense and account:

Total receipts from sales of lumber as reported by

the master .$183,392 13

Less items on receiver’s account. 2,361 18

$181,030 95

Total disbursements as per report... .$164,644 28

Less items on receiver’s account. 2,461 18

$162,183 10

[56] Error in the amount $2,191.40 of uncollected balance in the report. It should be $2,919.40.....$ 728 00

Attorney’s fees allowed-,. 130 00

Freights additional on machinery. 115 25

Paid on Griffin timber. 558 00

Paid on Wesson lots ■.. 1,634 66

Freight allowances on lumber from

sales book O . 1,830 44

- 166,679 45

Net profits .$ 14,351 50

E. A. Rowan’s account, as corrected by the chancellor, stands thus:

Total debits per master’s report .$ 16,358 53

Amount paid by the mill to Griffin’.'. 58 00

$ 16,416 53

Total credits master’s report. 11,456 29

Amount due to Lamb & Rowan .$ 4,960 24

H. N. Lamb’s account stands as stated by the master:

Balance due to Lamb & Rowan .$ 2,145 84

The accounts were placed by the chancellor on the, following basis:

E. A. Rowan £ net profits.$ 7,175 75

Less balance due Lamb & Rowan. 4,960 24

$ 2,215 51

H. N. Lamb £ net profits.$ 7,175 75

Less balance due Lamib & Rowan. 2,145 84

$ 5,030 91

In view of the fact that no expense account was kept by Lamb prior to the year 1887, and the further fací that the one that he kept after that time was not correct, or reliable, the chancellor was compelled to adopt, as the basis of the cost of manufacturing the lumber, the testimony of the experts on the subject, and [57] then to add to their estimate all of the expenses of the business that could be satisfactorily shown, and then from the gross proceeds of the sales of lumber ascertain the profit or loss. As there was no capital account kept, the only possible basis for ascertaining the interests of the partners was to assume from all evidence that they were equal partners, and that they had contributed an equal amount of capital to the firm business. Upon this basis the master stated the account.

We will now proceed to consider- the objections made to the report of the master by the counsel for Rowan. There is no objection to the charge made against Rowan of the proceeds of seven firm notes discounted in the Merchants’ & Planters’ Bank, one note discounted at the Capital State Bank for $300, February 20, 1884, and the Ragsdale draft for $250, amounting in the aggregate to the sum of. $4,357.55. The proceeds of these notes were placed to the credit of Rowan, as shown by the accounts of Rowan with those banks. Rowan testified that he collected the Ragsdale draft. The master credited Rowan with all of the moneys that were shown to have gone into the firm business. This was correct. Rowan is credited in his account rendered with $150 of the Ragsdale draft collected, and sent to Lamb by Rowan from Jackson February 18, 1884. The statement of the master on these matters is correct.

It is objected 'that the proceeds of the firm notes given to ITil-liards are charged to Rowan — N. E. Hilliard note, $750, R. E. Hilliard’s note $750. The amounts of these two notes, $1,500, was placed to Rowan’s account with the Mississippi Mills. On November 29, 1883, Rowan gave. Lamb a draft of the Mississippi Mills for $800, which was paid to the Lane & Bodley Company on a firm debt for machinery. On December 12, 1883, Rowan gave a draft of the Mississippi Mills to Lamb for $253, which was paid to the Stearns Manufacturing Company on a debt of the firm for machinery. And on the same day Rowan gave Lamb $10 in cash, which he got from the Missis[58] sippi Mills, wbicb was included in a draft for $400 which was paid to the Stearns Manufacturing Company on a firm debt. These amounts are all credited, as part of the Hilliard loan, to Rowan, by the master. Rowan paid $704.30 on one of the Hilliard notes with his own funds and the sum is credited to Rowan in the master’s report. All of which is correct.

It is objected that Rowan should not have been charged with the $10,149.47, the balance shown on the account rendered to him by Lamb. If this had remained a fixed charge against Rowan throughout the accounting, the objection would present the question whether Rowan was bound conclusively by the account rendered. But this was not the case. The master took them simply as a starting point in stating the account, and allowed Rowan credit for the items in that account incorrectly charged, and also credits for all items omitted from that account, and charged him with some items not included in that account. This was according to the directions of the decree, and it is correct, and it is the only possible way of stating the account.

Among the exceptions to the report is the objection that $2,000, which he suggests in his brief as the alleged profits on wood sold by Lamb, was not allowed by the master on the receipts of the firm. The master allowed $723.02 for wood sold to the Illinois Central Railroad Company by the firm. This is all that is shown by the evidence to have been sold. We decline to disturb the findings of the master, and which were concurred in by the chancellor.

Counsel for Rowan contends that Lamb on his personal account kept by himself charged himself with $11,272.37 and with $13,983.25, and that these amounts should have been charged to him by the master. These are not items, but aggregates. An examination of Lamb’s personal account shows that it is full of errors, and that he has charged himself with numerous items that were evidently used by the firm and for the firm business. Hnder the general directions of the decree the master [59] eliminated all the numerous and erroneous charges from Lamb’s personal account, and it is perfectly just and equitable that this should have been done. The master, under the same directions, made all the corrections in the items in Eowan’s account where, in his judgment, the evidence showed they were errors.

The objections of Eowan in the exhibit to -his exceptions to the master’s report showing claims to credit will be considered. The claim for an additional credit of $412.89 on the Hilliard notes has been disposed of. Eowan paid $704 on the Hilliard notes which has been credited to him. The Eldridge & Morris item, $282.52. There is no evidence npon which the report of the master can be changed and the decree of the chancellor reversed in respect to this item. Taxes paid by Eowan, $587.65. The master allowed $587.65. The check of $275 to Eowan for taxes was so applied by him. On the expense account $437.09 is allowed for taxes. Paid on Bennett land $501. Eowan is not entitled to any credit for this item, as shown by the evidence. Draft to the Lane & Bodley Company, December 27, 1883, for $100. This was allowed by the master. Money sent to Lamb by express Pebrnary 1, 1884, $150. This item, we think, should be allowed to Eowan as a credit on his account. This is not the same item as the $150 sent by Eowan to Lamb by express on February 18, 1884, which was Lamb’s money. Interest on $300 to Stearns Manufacturing Company, $11. There is nothing in the record upon which to allow this item. The Deaton item of March 30, 1884, $350. This was money paid'by Eowan for the firm, and it was allowed by the chancellor on the hearing of the first report of the master, and it is in the master’s report. Money by express to Lamb January 16, 1885, $135. Eowan claimed that he sent the money to Lamb, bur the evidence that this money was sent to Lamb is conflicting, and we decline to disturb the finding of the master and chancellor on this item.

We have examined the following items:

[60] Miss Lamb, November 16, 1885.? 30 00

Capital State Bank Note, April 17, 1885. 475 00

Bloom . 100 00

Patt«motte . 125 00

Wimberly . 110 00

Goodwin & Bailey. 130 00

There is no satisfactory evidence in the case upon which to disturb the rulings of the chancellor and master on those items.

The Beale loan.$ 175 00

Cash . 2 00

Lamb . 184 00

The above items of credit were allowed by the chancellor on the hearing of the first report of the master, and they are in the statement of Rowan’s account.

The rulings of the chancellor should be sustained in the dis-allowance of the following items of credit claimed by RoAvan:

Mrs. Lamb, in 1885 ..$ 30 00

Lumber in Mississippi Mills in 1886 . 119 00

Note in Merchants’ & Plantaers’ Bank, in 1886. 300 00

Duebill to Bloom . 150 00

Draft to Woodmen Iron & Hardware Co., 1887. 20 00

Daybook charges . 698 83

Credit to Lamb on Mississippi Mills account. 34 20

The claim for $583.90 for the interest and discount on eight notes discounted in 1888 Ave do not think should be disalloived on the evidence', and Ave concur in the finding of the master and the chancellor. We make the same rulings in regard to the following items: Armstrong note in 1888, $20; IT. O. Conn receipt, in 1889, $77; Jesse Parker, in 1889, $28. Rowan is credited by the master with $150 paid to IT. C. Conn, attorney for the Lane & Bodley Company, by Rowan. Afterwards $77 was paid, and a receipt in full was given for $227. The evidence does not show that Rowan paid more than $150 credited to him.

The master and the chancellor allowed thg following items as credited to RoAvan Avhich appear in the exceptions, viz.: Pow-[61] ler’s notes, Stern or Lusk, oxen, $90, Tribbette payment, $335; lumber in barn, $160, and the amount paid to Sexton, $1,119.27. Mr. Miller, Rowan’s attorney, contends that more sales of wood should have been charged by the master. We do not concur in this view of the evidence.

The item of lumber sold to the Mississippi Mills of February 6, 1886, $663.01, should be allowed as a credit to Rowan on his personal account. Rowan testified that he had a lot of lumber of his own that came from Bridewell’s Mill to the planer of Lamb & Rowan. It was planed and sold by Lamb to the Mississippi Mills for $1,170. Out of this sale $663.01 was placed to Rowan’s credit on his account with the Mississippi Mills. On Rowan’s account rendered he is charged with $663.01. Lamb’s bookkeeper testified that the lumber was sent to the Mississippi Mills from the Lamb & Rowan planing mill, where it had been dressed. This is true. But on the question of ownership of the lumber Rowan’s testimony should be accepted. The item of $119.20 for lumber, of May 22, 1886, for which Rowan claims a credit, is not shown in such a manner as to justify the reversal of the finding of the chancellor. The item of $75 credited on the firm note of $1,000 to Douglas should be credited to Rowan on his personal account. This was the price of a lot in Wesson sold by Rowan to Douglas, and indorsed as a credit on the note. There is an apparent discrepancy between the date of the deed and the credit, but this is not controlling in view of Rowan’s positive statement that the price of the lot went to the note. The mill paid Douglas $1,000 afterwards, and took up the note with the credit on the note.

It is also objected by Rowan that the master did not make him a sufficient allowance for timber sold by him to the firm. The master allowed for 1,245 acres $867.50. Rowan claimed for 1,250 acres. We cannot make a more accurate estimate of Rowan’s timber on the evidence than has been made by the master and concurred in by the chancellor. It is also contended [62] that Lamb should be charged with the living expenses of himself and family. We cannot concur in this view. Lamh is charged by the master with a total of $8,685.09 on his personal account, nearly all of which is cash, and there is no data in the record upon which the court should set aside the findings of the master and the chancellor in overruling this exception. We concur fully with the chancellor in not sustaining this exception to the master’s report.

It is also objected that too large a quantity of lumber was charged to Bowan in his account rendered. There is a conflict of evidence on this matter. Bowan stands charged with the lumber, which appears in his account rendered on the sales books of the firm, and these are unquestionably books of original entry, and apparently are correctly kept. All of the entries of sales of lumber contain the name of the purchaser and the invoice and the price of the lumber, with the date of each sale. We are of the opinion that the finding of the master and the chancellor in respect to this exception should stand. There is no other satisfactory basis upon which to fix the amount of the lumber sold to Bowan.

There is an exception to the amount allowed by the master as personal credits to Lamb that went into the construction of Mill No. 2 from Mill No. 1, which was burned prior to the partnership, and which was the property of Lamb. These amounts are as follows:

For.bagging outfit sold to Pattenotte .$ 200 00

Lamb’s mill pumps, etc. 170 00

Fixing mill No. 2. 900 00

Grading at mill No. 2. 421 00

These items are all correctly allowed. The bagging outfit and the oxen were paid for by Pattenotte in the work on Mill No. 2. The sums allowed by the master for the machinery that went from Mill No. 1 to Mill No. 2 are fairly estimated, and the item for grading is correctly estimated. There was a lot of [63] lumber shipped by the firm to A. W. Jones at Jackson, Tenn. The evidence in respect to this transaction is hazy and conflicting, and there is no satisfactory explanation or data that will justify the reversal of the action of the chancellor of overruling the exception to the item.

Many of the exceptions of Rowan to the master’s report are not presented on the brief of counsel, but they are included in his assignment of errors, and are presented by the record for decision, and they have received the careful attention of the court. We have examined the matter of the discounted firm notes which the master charged to Rowan, less the discounts, as accurately as possible, and do not discover any error of the master’s report in this respect. Owing to the manner in which the books were kept, the only method was to charge Rowan with the proceeds of the notes received by him, and to credit him back with the moneys paid over by him to Lamb for the business.

There are several general objections presented by counsel for Lamb to the accounting before the master that will be disposed of before proceeding to consider the specific exceptions to items in the report. It is contended that the chancellor erred in directing the cost of manufacturing the lumber to be based on the estimates of the mill experts,, and that the actual costs should have been made the basis for the accounting. And the further objection is made that the report of the master does not include the general outside expenses of operating the business. As we have said, there was no other mode of estimating the cost of manufacturing the lumber. There was no expense account kept from 1883 to the year 1887. The account that purports to have been commenced in the year 1887, and which purports to be a book of Original and contemporaneous entries, is inaccurate, and not to be relied upon as a safe basis for the time during which it purports to have been kept. The total expense shown by this book is less than $118,000. The evidence shows clearly that it does not contain all of the expenditures of the firm for the [64] period covered by its dates. The chancellor regarded this as a made-np book, and not one of contemporaneous entries, written up from various loose memoranda, and not to be relied upon as a book in which the entries were made as the transactions occurred. The chancellor held that this book was not competent or admissible evidence as a book of original and contemporaneous entries. Whether it is or is not a book of original and contemporaneous entries, it is too inaccurate to be made the basis of the account of profit and loss. It is not necessary, in the view that we take of the case, to decide the question — which is in reality an abstract one — whether, on the testimony, this book is one of original entries, within the legal meaning of their term, for, if it had been technically before the master, in evidence in the cause, the result reached in the accounting on the basis and theory adopted by the chancellor would have been the same.

Four small-sized memorandum books, designated in the record as A, B, C and D, were kept as books of original entries, but it is impossible’to state an account of profit and loss from them, and no effort to do so was made in the court below.

If the book called the “expense account” had been taken as the basis for the expenditures for the purpose of getting the actual cost of manufacturing the lumber, and the same ratio of expenses had been estimated for the years 1884, 1885 and 1886, the total should be much less than the amount allowed by the chancellor for the cost of manufacturing the lumber and for the general expenses of the business. The estimated cost of making the lumber, as allowed by the master, is $5 per thousand for 2,392,815 feet of dressed lumber, making a total of $93,729.21. The difference — $70,915.07 — between this and the total, $164,644.28, in the master’s report, is made up of cost of hauling from the mill to the railroad, the cost of machinery, amounts paid for timber, interest and discounts, freights and express charges. This method is fair and just to both [65] parties, and the work of- tbe master, as shown in stating these accounts from the great mass of confused accounts and vouchers 'and perplexing entries before, illustrates the patient and painstaking research and accurate discrimination required for a task of this character.

The objections for counsel for Lamb that the report of the master is vague and indefinite, and is not sufficiently itemized, are not well taken. The report of the master is a model of clearness and methodical arrangement; and its itemizations in the exhibits that accompany it is all that could be required to show the items included in its aggregates. -

The objection is made to the decree referring the case to the 'master for an accounting that the master was restricted in the allowance of credits to Lamb to items for which the vouchers were shown. We do not so construe the general directions of the chancellor. A very wide range was taken in the evidence, and the books of account, accounts, letters and correspondence, memoranda and verbal testimony were all before the master and the chancellor, and it is evident that these were made the basis for the master’s report. Apparently all the evidence obtainable by each party.was introduced in respect to every controverted item in these extensive and complicated accounts.

It is contended that $4,539.13 of accounts collected belongs ing to Mill No. 1 were contributed to the business of the firm. It is impossible to trace these collections with accuracy. The master allowed Lamb in his personal account for $1,471 of cash that went into construction of Mill No. 2, in addition to the $2,000 logging outfit. TJpon the state of accounts in the record the master and the chancellor disallowed this claim, and we approve this finding. . •

There áre a number of, objections to various items of the ■report of the master which will be considered in the order in which they appear in the exceptions in- the record, rather than in the order in which they arc presented in counsel’s brief.

[66] The objections that the items charged to Lamb are not itemized is not well taken, for they appear in an exhibit which accompanies the report. The itemization is entirely clear and particular. There are a number of items making an aggregate of $1,105.46, claimed as charges against Rowan. These items were never charged to Rowan, and are on the list, filed with Lamb’s testimony, containing the omitted items, which amount to over $20,000. These matters are all controverted, and we think that the chancellor’s ruling on the exception should be sustained. The items of $1,135 cash claimed against Rowan, and never charged to him, but which appear on. the list of omitted items, are a controverted matter. Rowan testified positively that he never received this money from Lamb. Lamb’s explanation is that he sold a lot of lumber belonging to Mill No. 1 to the Illinois Central Railroad Company, and gave it all to Rowan except $6.35, which he kept. In this conflict of testimony the master and the chancellor found against this claim, in which view we concur. The item of cash, $480, claimed to have been paid to Rowan from Mill No. 1 is another controverted matter. We decline to disturb the ruling of the master and chancellor on the exception. There is an item of $325 credited as cash from Rowan on Rowan’s account rendered to him by Lamb, and on the same day he is charged with $322 on the salebook C. It is contended by Lamb that the entry of the credit is a clérical error. Book O is not an account book, which shows accounts, or the account of any other person, but a mere memorandum book. The item of $325 never was charged to Rowan. The two amounts are not the same, and it is contended that another entry of $3 was necessary to be included to make the two entries each $322. There is no evidence upon which to correct this alleged error and to charge Rowan with this amount. These are only the entries themselves, and they do not show a patent error. The two items, $10.83, January 17, 1887, and $286.96 claimed against Rowan [67] for lumber, were never charged to Rowan, but appear on the list of omitted items. They are controverted items, and we decline to disturb tbe ruling of the master and tbe chancellor. The contention that the amount of the Douglas note for $1,000 should be charged to Rowan cannot be sustained. This money was borrowed from Douglas on the note of the firm, and the money was used in the firm business. It was paid in lumber by the firm, except $75, which Rowan paid as the price of a lot in Wesson. The exception was properly overruled by the chancellor. There was $1,120 of partnership property which was in the receiver’s hands included in the master’s report. The exception to this was sustained by the chancellor. The claim for an additional allowance for insurance as an item to the extent of $180 is sustained. This was paid by the Mississippi Mills for Lamb & Rowan in 1887, and is shown by an entry on the Mississippi Mills account, “To J. S. Rea, Ins. prem. $180.00.” There is nothing to show the payment of the other half of the premium, or what was done about it. This account should be allowed on the firm expense account. The objection that the Hall’s safe, valued at $160, was not placed in the expense account, is not well taken, as all of the purchases for the plant are allowed by the master in the expense account under the head of “machinery.” The exception that attorney’s fees to Weatherford, $75, Dodd & Mayes, 20, R. N. Miller, $20, and R. N. Miller, $25 were not allowed on the expense account is not presented on Mr. Green’s brief. The chancellor,’ on the hearing of the exceptions, added $130 for these attorney’s fees. The exact total is $140. We presume that the items are the same, and that the discrepancy is an error in addition or a clerical mistake.

The exception that discounts on loans made by the firm on firm notes discounted were not allowed by the master was not-sustained by the chancellor. . The master allowed as credits on [68] the firm expense account for discounts and interest $2,205.15, as follows:

By interest on notes at M. & P. Bank as per hank statement in evidence .•.$ 225. YO

By discount contained in the same reference to the evidence. 424 YO

By interest on the Tribbette note.'. 800 00

Interest on Hilliard note . Y54 00

$ 2,205 40

These allowances cover all the discounted notes. We do not think that this exception should be sustained.

It is contended for Lamb that certain items of traveling expenses, amounting to about $300, should have been allowed on the master’s report as expenses of the firm. The evidence does not show clearly or satisfactorily the character of these expenses. The master and the chancellor both found against this claim,

■ and we will not reverse their ruling on the matter. No allowance was made to Rowan for any personal expenses. These matters are in too indefinite a state to be allowed.

The claim for $106, the difference between the cash items paid to Elbridge & Morris for dressing certain lumber specified in the exception and the estimate of $1.70 per thousand for dressing lumber, was properly and consistently allowed. The estimate made by the master of $1.70 per thousand for dressing lumber was applied to the entire amount of dressed lumber made by the firm, and this was over the maximum rate shown by the testimony.of the experts. So that, while the estimate of this particular small lot of dressed lumber may be short of the cash amount claimed to have been paid for it, yet the estimated cost of the whole output unquestionably equals, if it does not exceed, the actual entire cost of the whole amount of lumber made by the firm.

The interest allowed by the master on the expense account paid by the firm on the Tribbette note of $3,750 is $800, and not [69] $840, as stated in Lamb’s exceptions. The sum of $531.18 is claimed as an additional credit for interest on this note, and counsel has presented a calculation of interest which contains an error. We give a corrected statement:

Total payments indorsed on the notes.$ 4,934 93

Principal of the note . 3,750 00

Total interest paid .$ 1,184 93

Amount allowed by the master. 800 00

Difference .$ 384 93

This amount, $384.93, will be placed on expense account. The claim for credits for cabins and improvements on the firm property are included in the allowances made by the master for expenditures made on both Mill No. 2 and Mill No. 3. The claim-of $800 is allowed by the master for payments made on the Bennett timber on the firm account, which is correct. We think that all pf the timber allowances made by the master are correct.

On the evidence as to the item of $200 cash claimed by Lamb to have been given to Rowan to pay for Bennett timber, and that Rowan only paid $150 of it to Bennett, the master and the chancellor both declined to allow the claims, and on the proof it does not appear that they erred.

A part of the credit for $187.50 paid to Griffin for timber is not seriously controverted. Lamb testified that the mill paid $58 in lumber to Griffin. -This was not controverted. The master did not allow the amount, but the chancellor allowed it on the hearing of the exceptions. There was a controversy in respect to the balance of this item of $187.50. Lamb testified that he gave Rowan $130 to pay to Griffin for the timber, and this Rowan denied. We decline to disturb the ruling of the chancellor on this exception.

The exception that the master failed to allow $1,634.66 on the expense account paid by the firm to Rowan for lots in Wesson [70] was sustained by tbe chancellor, and was placed by him in his final statement of the account, which forms part of the final decree.

Lamb makes a claim for $30 for timber purchased by the firm from Hoggett. The master allowed on the firm expense account $580 for payments made to Hoggett for timber, and we decline to disturb the ruling of the chancellor upon this exception.

The claim for $40 for timber alleged to have been bought from Ben King was not allowed by either the master or the chancellor on the evidence. We decline to reverse their ruling on this exception.

The exception that the master failed to allow on the firm expense account an item of $54.95 paid on a draft of Gr. W. Carlisle on the firm on January 9, 1890, for land for the partnership, is shown by Carlisle’s draft, which is paid. We think that this should have been allowed as a credit to ¿he firm on the expense account, as it was given for Carlisle’s interest in land of the firm.

The claim for $5, an alleged error in the amount paid for the Hirsh land, was disallowed by the chancellor, and we see no reason for correcting the amount allowed on the land purchase by the master, which is $150.

Counsel for Lamb contend that a sufficient amount was not allowed for timber cut for Hill No. 2, which belonged to Lamb. We have explored the record in regard to the timber purchased by the firm for both Mill No. 2 and Mill No. 3, and have reached the conclusion that this court cannot state a more correct or satisfactory account of the timber than has been done by the master and the chancellor. The exception that $1,850.67 was not allowed by the master for freight was sustained by the chancellor. On ledger O there is an entry of aggregate losses on lumber, making the total of $1,850.67, the amount allowed by the chancellor. We think the account as it stands is correct.

[71] ' It is objected that tbe sales of wood, amounting in tbe aggregate to $726.82, are included in tbe aggregate of tbe sales of lumber. This is true. Lamb denied that there was any partnership in tbe sales of tbe wood, and that this was bis individual business. Rowan testified that this belonged to tbe partnership, and that be often paid off tbe bands at tbe woodyard. Upon this conflict in tbe evidence tbe master allowed tbe wood sales, and tbe chancellor sustained the finding of tbe master on tbe bearing of tbe exceptions, and we decline to reverse tbe ruling of tbe chancellor.

Tbe items claimed by Lamb $10 interest on tbe $100 note to • Tribbette, $3 on tbe note discounted by tbe Commercial Bank, $1.75 on tbe Stillwell & Brice debt, and $10.32 on tbe Brickford & Brazier account, were not allowed by tbe master, but tbe court is not furnished with tbe date that will justify tbe reversal of tbe chancellor’s rulings on tbe exceptions.

There is one exception by Lamb that tbe chancellor omitted to charge Rowan with $16.91 for lumber sold to him by tbe firm after tbe account was rendered. Tbe master charged Rowan with .lumber after bis account was rendered, two items, one of $104.07 and another $4.44. It is not shown that there is an additional item of $46.91.

It is further contended that tbe master made no allowance for loading tbe lumber on tbe cars. It is true that no specific amount was allowed for this item of expense by tbe master. But tbe estimate of $5 per thousand made by tbe master according to tbe direction of the chancellor in the first decree of reference for rough lumber covers tbe cost of loading tbe lumber. Tbe testimony of tbe experts fix the mill cost of sawing and stacking tbe lumber on tbe millyards at $4.75 per thousand and $1.70 for dressing tbe lumber per thousand. This leaves a large margin for handling as well as for other expenses.

It is further contended that tbe hauling allowances made by tbe master are insufficient, in that there was a total of 17,932,285 [72] feet of lumber sawed by both mills, while the hauling expenses áre only allowed on 14,334,333 feet, showing a difference between the lumber sawed and the lumber hauled of'3,597,952' feet. This is explained by the fact that the master, in going through the sales books, excluded from the hauling estimate all lumber that was sold and delivered at the mills. Over $25,000 had been allowed for hauling lumber, which is correct.

The exception that no allowance was made for a watchman cannot be sustained for the reason that there are several extra men estimated for by all of the experts who testified in respect to the cost of manufacturing the lumber. This evidently includes watchmen.

The claim for $964.20 for lumber for.a shed at Mill No. 3 cannot be sustained. The master allowed $482.10 for this item.

We think the master was correct in allowing $437.09 as the expense account and to Rowan $587.65.

The claim for $160 for a grist mill claimed to have been burned in the planng mill is not sustained by the evidence.

There is an objection that any credits were allowed to Rowan on the revised account that he presented, for the reason that they are not within the decree of reference. We do not concur in the view of counsel. The evidence on both sides extended over every controverted point in the case, and this matter was clearly within the discretionary powers of the chancellor.

There is an exception to the allowance made to Rowan for 1,245 acres of timber cut at $1.50 an acre, amounting to $1,867.50. This matter has already been considered and disposed of.

Counsel for Lamb contend that three of the notes of the firm of Lamb & Rowan which were discounted at the Capital State Bank, one of which was for $300, one for $475, and one for the sum of $100, and two firm notes discounted at the Merchants’ & Planters’ Bank for $565 and $400, respectively, and three for $300 ea,ch, and one note for $53 discounted at the [73] Commercial Bank, should be charged to Kowan in addition to those charged to him by the master. We have been over all of the notes of the firm which were given for loans, and we approve the finding of the master and the chancellor in respect to.the same. The method pursued in the court below was to charge Lamb with the proceeds of the discounted notes where the same • were placed to his credit in bank, and to allow him credit for all the amounts turned over by him to Lamb for the firm business. In respect to all of the firm notes for borrowed money, where the notes were not charged to Rowan by the master, the money went at once to the business and the notes were paid by the firm. None of these notes in the exception should have been placed on Rowan’s account.

The firm received the entire proceeds of the Tribbette notes —one for $375 and one for $100 — and the Douglas note of $1,000, and they were paid by the firm, except $335 paid by Rowan on the Trbbette note and $75 on the Douglas note. These notes were not charged to Rowan, and, we think, properly.

The Rea item of $200, the Grice item of $175, the Oox item of $152.32, the Tillman item of $150, the Stillwell & Brice item of $62.20, and the Campbell item of $114, and an item of $480, which Mr. Green contends should be charged to Rowan, are all controverted matters. They are not charged to Rowan on his account rendered by Lamb, and there is no satisfactory evidence upon which to charge the items to Rowan.

The note of $500 to White, which it is contended should.be charged to Rowan, was paid by Rowan with his own money, and he testified that the proceeds of this note went to the firm. This credit was proper, and the note should not be charged to him.

The item of $357.79 for lumber claimed by Lamb against Rowan was not charged to Rowan by Lamb. It is a controverted matter, and there is no satisfactory evidence upon which to charge it to Rowan.

None of the items of exceptions in volume 1, p. 116, several [74] of which, hare already been disposed of, should be sustained, except the $300 the proceeds of the Ragsdale draft, that went to the Lane & Bodley Company on December 27, 1883, on a firm debt for machinery. This should be allowed to Lamb on his personal account. These items have all been fully examined. The $800 and $100 of the $400 paid to the Lane & Bodley Company in December, 1883, and-the $253 paid to the Stearns Manufacturing Company were part of the proceeds of two notes given to the ITilliards for $750 each for loaned money. The $1,500 was credited to.Rowan on his account with the Misss-sippi Mills, and the master charged him with the $1,500 and credited him with the $800 and $100 of the $400 paid to the Lamb & Bodley Company and $253 paid to the Stearns Manufacturing Company. This is a correct statement of the transaction.

The other thirteen items in this exception, volume 1, p. 116, 117, of the record, have been examined, and we decline to disturb the findings of the master and the chancellor in allowing the claims. The item of the Ragsdale draft, $250, is clearly explained. This draft was handed to Rowan by Lamb in January, 1884. Rowan collected it, and in February, 1884, sent $150 by express to Lamb, which is credited to Rowan on his account. The master charged Rowan with the amount of draft, which is correct.

The decree for a credit of $50 on the firm expense account for a Cove saw swage, which is credited on an account of the firm with Baldwin, Rhodes & Co., for a new saw swage for $75 on November 22, 1889, should have been allowed.

It is contended that an aggregate of $1,949.69, made up of amounts paid for machinery in 1883 and 1884, beginning with $800 paid to the Lane & Bodley Company and the $253 to the Stearns Manufacturing Company, which has already been examined, should be allowed as so much capital contributed by Lamb to the firm, which were not so held by the master or the [75] chancellor. We concur with the master and the chancellor in the disallowance of the claim, as the greater part, if not all, this sum was paid with money borrowed by the firm. None of the items composing this aggregate are shown to have been paid by Lamb.

There is an elaborate schedule filed with Lamb’s exceptions showing entries of cash that were charged to Lamb on his own account, taken from his personal account, that were used in the business of the firm. We have examned Lamb’s personal account as stated by the master, and find that he is not charged with the money of the firm that he received personally and for his own use, and that the master has estimated from Lamb’s account which he produced in court all of the items of cash that should have gone in a partnership account and cash account if the books of the firm had been correctly kept.

• The decree of December 17, 1901, directed the master to credit Eowan with $160.36, lumber used in a 'bam, and $1,-119.27, paid by Eowan to Sexton, and also to credit the expense account of the firm with these items. The master credited them to Eowan, but did not place them on' the firm expense account. On the hearing of the exceptions this action of the master was confirmed by the chancellor. Eowan is entitled to these credits on his account with the firm, and we think that they were properly omitted from the expense account.

The objection, that the cost price of the property in the hands of the receiver should be credited against the gross amount of the sales of $181,030.95 is not well taken, for the theory upon which these accounts proceeded is that the amounts paid for the partnership property were charged against the gross sales of lumber. The master allowed on the expense account for machinery alone the sum of $21,254.43, besides allowing the price of the partnership lands and of timber purchased for the mills. We think that this is correct.

We find a renewal of the objection by Lamb that the expense [76] account does not' include an allowance for repairs and various other items' of expense contained in Exhibit 2 to bis exceptions. This is true, but we have seen that on the estimated expense account the estimate of $5 for rough and $6.70 for dressed lumber allowed a large and liberal margin for incidental expenses not included in the master’s itemization of actual expenses. The master allowed all of the larger actual expenses of the business, such as insurance, taxes, freight and express charges, timber purchases and hauling, and these supplemented the estimated mill cost of making the lumber. To have superadded to these the incidental items of expense claimed by Lamb would manifestly show an incorrect balance. If the estimate method is abandoned, and only the items of actual expense proven by the evidence to have been paid out allowed, there is no doubt whatever, from the evidence in the case, a very large and fictitious balance of profit would appear. It is apparent, therefore, from the condition of the affairs of the partnership, that the chancellor adopted the only practicable, if not the only possible, method of stating the account.

It is contended that the lumber sold to Rowan, and the lumber sold to other persons and charged to Rowan in the account rendered to him, should not have been included in the gross amount of the sales of lumber fixed by the master. It is true that this lumber is included in the total gross amount of sales of lumber fixed by the master. This constituted sales of lumber by the firm to Rowan, and it is all charged to him as such on his account rendered, which is all correct.

The items of the years 1887 and 1888 in volume 1, p. 125, of the record, 'making an aggregate of $749.91, claimed by Lamb against Rowan, appear in the Mississippi Mills account kept in Lamb’s name as cash paid to Rowan and charged to Lamb. They were not charged to Rowan on his account with Lamb & Rowan. It is argued by counsel that these items should how be charged to Rowan for the reason that they appear, as [77] stated, on the Mississippi Mills account. We do not concur in this view of counsel. The account in Lamb’s name with the Mississippi Mills was a firm account of Lamb & Rowan. An account was afterwards opened with Lamb & Rowan by the Mississippi Mills.

It is objected also that there are. sis items credited on Rowan’s account with the Mississippi Mills from Lamb & Rowan .which should now be charged to Rowan. They are as follows: In 1887, Rea lumber bill, $200, to E. A. Rowan, $63. In 1889, Oliver & Sons, $30. In 1895, balance transferred to Rowan, $60.95. In 1888, amount charged to H. N. Lamb, $269.50 and amount charged to Rowan, $5.53. These items,, with $747.91, .make the aggregate of $1,105.46 which is the subject of an exception that has already been disposed of. None of these items were charged by Lamb to Rowan. They are all controverted. ■We are not able to say what are the actual facts relating to these entries, and we will not disturb the findings of the master and chancellor on these exceptions. The two items making $357.79 for lumber in 1887, claimed by Lamb for lumber sold to Rowan and never charged to Rowan, are included in the list of omitted items, which amount in the aggregate to over $20,000, are controverted, and we will not change the .account in this respect.

Lamb claims a credit for $74 as interest paid on the White note of $500. This entire note was paid by Rowan, and the master credited Rowan correctly with the principal and interest $574.'

The master and chancellor.declined to allow a credit on the expense account for a gristmill, $160, which is alleged to have been burned in the planing mill. It is said to have been purchased from H. Dudley Coleman, but there is no bill or invoice of it, and there is no evidence in support of it upon which the finding of the master and the chancellor should be overruled.

It is objected to the item of freight on machinery, $1,343.10, in the expense account of the master, that' the vouchers show [78] $1,458.33, and it is said in the exception that the chancellor examined these vouchers on the hearing of the exceptions to the first report of the master. But the chancellor, with the vouchers before him, declined to sustain this exception.

After filing his first account in the cause, Bowan filed a revised or amendment account. There is an exception to every item on that revised account which was allowed by the master on the ground that it was not included in the decree of reference, and on the further ground that the account rendered to Bowan is an account stated, and, according to the decree of reference, is conclusive. It is further objected that these items are barred by the statute of limitations. We do not think that this is a correct construction of the decree. The master was instructed to eliminate from all of the accounts all errors that were satisfactorily shown by the evidence to be such. Even if the decree, in its terms, had not included all of the accounts filed by Bowan, it is evident that everything was gone into by the evidence, and the matter was, as we have already said, within the control of the chancellor. We have already disposed of the question of the statute of limitations.

Lamb objects that Bowan was allowed $1,867.50 for the timber cut on 1,245 acres of his land. We have already expressed the view that none of the findings of the master and chancellor in respect to the timber allowances should be disturbed.

Lamb has filed exceptions to almost every one of the .credits allowed on Bowan’s accounts by the master and the chancellor. We will note briefly each one of the exceptions.

The evidence is clear that Bowan paid $704 of his own funds on the Hilliard notes. It is equally clear that $800 and $100 of the money borrowed on the Hilliard notes went to the Lane & Bodley Company, and that from the same source the $253 to the Stearns Manufacturing Company was paid. The evidence shows clearly that Bowan paid with his individual funds a firm note in 1884 to the Stearns Manufacturing Com[79] pany, $253.50. Rowan was credited by Lamb on bis account with $253.50. Tbis entry was afterwards changed on Rowan’s account by baying $153.50 written in its place. Tbe original entry was correct, and should have stood. Tbe master credited Rowan properly with $100 on bis account, which corrected tbe error.

Tbe sum of $952 of Rowan’s money in tbe Capital State Bank was paid on two notes discounted at tbe Merchants’ & Planters’ Bank — one for $550, of March 21, 1884, and one for $400, of April 10, 1884. There is no doubt about tbis fact on tbe evidence, and we concur with tbe master and chancellor in their rulings on tbis exception.

Tbe item of $23.61 credited to Rowan by tbe master is tbe difference between tbe amount charged to Rowan on bis Mis-sissppi Mills account and tbe amount in tbe statement of tbis account. Tbis was an error which is apparent, and it was corrected by tbe master by giving Rowan credit for the $23.61.

On January 15, 1886, Rowan gave bis personal check on tbe Merchants’ & Planters’ Bank for $65 to pay a firm debt to Bartlett, and which was applied to tbe debt. Tbis amount was properly credited by tbe master to Rowan on bis account.

There is an exception to tbe allowance by tbe master of $110 sent by express by Rowan from Jackson to Lamb on January 21, 1886, for tbe firm business. We think that tbe evidence warranted tbe master and tbe chancellor in allowing tbis credit on Rowan’s account.

Tbe next objection is to ten small items that are set out in tbe exceptions, running from $2.75 to $37.50, as cash paid for tbe firm by Rowan, and which were allowed on credit to Rowan by tbe master and tbe chancellor, and which allowances, on tbe evidence, we sustain.

As to tbe $129, and tbe item of $120 paid for oxen by Rowan for tbe business, there is no doubt, upon tbe evidence, of tbe correctness of tbe allowance of tbe amounts as credited to Rowan. It is equally clear that Rowan paid to H. C. Conn $150 on [80] account of a firm note to the Lane & Bodley Company on February 3, 1889.

Bowan claimed a credit for $777 paid by him to Williams Bros, on firm orders for mill hands given on Williams Bros. They went through this account and picked out all these small orders from the other items which appear on the Williams Bros, account, and upon this allowed Bowan credit for an aggregate of these orders of $561.84,' which is correct.

The evidence is entirely satisfactory that Bowan paid $335 on the note of the firm to Tribbette. This note was given originally to the Capital State Bank for a loan for Lamb & Bowan. It was bought by Tribbette, and he extended the note, when finally it was taken up by the firm. We approve of the allowance of this credit to Bowan of the partial payment made by him on this note.

The master allowed Bowan a credit for $690, which was paid by him on a firm note for $900, discounted in the year 1887 in the Merchants’ & Planters’ Bank. This is correct on the evidence.

The order of Bowan to Pattenotte on Biley for $60 for work done on the mill was correctly allowed as a credit to Bowan.

We think that there is no doubt that Bowan closed the balance of the firm account with Williams Bros, with his note for $265.16, and this was allowed by the master on his account. •

The items of $5.30 for costs in the Hartgog suit and $2 cash paid for work on the mill were correctly allowed as credits to Bowan. They are clearly established by the evidence.

The item of $100 of December 27, 1883, “Draft Miss. Mills $100,” to which an exception is filed on the contention that it should not be allowed as a credit, has already been carefully examined, and our concurrence expressed in the finding of the master and the chancellor as to the merits of this claimed credit.

In respect to the second objection to this item — that it appears twice as a credit on the master’s report — we have made a careful investigation of the testimony in order to ascertain [81] whether the items are the same. On December 27, 1883, Eow-an gave Lamb a draft or bill of exchange for $100 drawn by the Mississippi Mills, which was sent to the Lane & Bodley Company with $300 of his own, making the credit of $400 that appears on the Lane & Bodley Company’s account. Eowan on that day had no other transaction of $100, but he testified that his recollection was that he cheeked $200 out of the Mis-sissipp Mills on that day, which he gave to Lamb to pay the mill hands. This Lamb controverted, and the $200 claim is disallowed by the master and chancellor. We have already sustained their ruling on the $200 item. We find that the $100 appears twice on the master’s report, the result, evidently, of a clerical error, and it will be corrected.

We have examined the following allowances of credit by the master to Eowan, and find them correct, viz.: Stern for oxen in 1887, $90; the note to White and interest, $574, in 1888; the Commercial Bank note of $153 in 1892; paid Deaton $350 in 1884; Beale loan in 1884, $175; and to Lamb $184 on September 2, 1885.

The item of $160 for lumber used in building Lamb’s barn was allowed by the chancellor in the second decree referring the cause back to the master, and we think this was entirely correct on the facts. The barn was built for the convenience of the firm, and was used for the mill. It was built on Lamb’s land, and is Lamb’s property. The lumber belonged to the firm. Lamb erroneously charged Eowan with the whole amount. Eowan did not owe for the lumber, for it was firm lumber used for the partnership business. It was the proper way of correcting Lamb’s error to credit Eowan with this amount, as was done by the master and chancellor.

Lamb has an exception to the allowance by the chancellor in the second decree of reference of $1,119.36 paid by Eowan to Sexton. The facts in respect to this item are as follows: Eowan gave his personal note to Sexton for $1,369.36, of which $480 [82] went to Rowan for bis own use, and. the balance was given by Rowan to Lamb to pay some freight bills due by the firm. Rowan’s statement in his testimony on the point is- quite clear and positive. He explained fully how much money the mill received, and he also explaned the details of the business transaction between himself and Sexton in respect to the $480. . In the year 1893 the mill paid $1,848.96 in lumber on this note and its accumulated interest, which was all charged to Rowan on his account, and so stands on his account rendered. The balance of the note — about $800 — was closed by Rowan by a, new note of his own. The original note to Sexton bore interest at the rate of 15 per cent per annum, which accounts for the large amount paid on it. The master made an apportionment of this transaction by charging the firm, in Rowan’s favor with the money that Rowan turned over to the firm, and. which was used by the firm, with legal interest, which is correct, as Rowan in effect loaned this money to the firm, having paid off the Sexton note. It is conceded in Lamb’s testimony that the firm received some of this money from Rowan to the extent of $200 of $300, though he testified positively that the mill got all but th¿ $480. We think it clear that Rowan is entitled to the credit of the money that went to the firm, with legal interest, and upon this basis the master allowed the credit to Rowan of $1,119.27.

There is a long list of items in the record, volume 1, pp. 137, 138, which Lamb insists should be charged to Rowan. They are items that were never charged to Rowan by Lamb. Among them ár.e the various notes of the firm which were discounted, and where the proceeds went to the business of the firm, and none of which should be charged to Rowan. All of these items have been passed on in the opinion, except a check for $275, given to Rowan for the payment of the taxes of the firm. Thiá money was paid by Rowan for the firm’s taxes. If he had been charged' with this sum he would have been entitled to a credit for it, so there is no reason for putting it on the statement of the account.

[83] ; Tbe items in volume 1,-p. 139, of tbe record, making an aggregate of $2,012:84, bave been alreády considered and passed upon. Some of them bave been considered on tbe exceptions that they should not bave been credited to Rowan. It is perfectly clear on tbe evidence that tbe $800 and tbe $100 of *tbe $400 paid to tbe Lane & Bodley Company and tbe $253 paid to tbe Stearns Manufacturing Company, included in these exceptions, came from tbe Hilliard loan of $1,500, and were not paid by Lamb with bis individual funds. There is nothing in tbe evidence to authorize us to set aside tbe findings of tbe master and tbe chancellor in not allowing Lamb credit on bis personal account of tbe other items named in tbe exceptions, viz.: Quinine, $9.85; freight on machinery, $80; to Margan, $10.60; Capital State Bank note, $247.85, of May 8, 1884; cash erroneously credited to Rowan by Lamb, $63.15; cash to Pattenotte, $10; freight on machinery, $0.50; cash to Rowan, $20; express on belt, $18.70; freight, $18.70; freight, $2; cash to Rowan from Hicks, $53.19.

We bave examined tbe list of items in volume 1, pp. 142, 143, 144, claimed as expenditures or expense items, which should, it is insisted, bave been allowed by tbe master. These are for various small articles for tbe mills, some for ordinary operating expenses, items for machinery, for work in constructing mills and ordinary repairs, for hauling, and an estimate of $2,000 for construction work and hauling machinery. As we bave already observed, tbe master has allowed for—

Machinery .? 21,254 43

And freight on machinery .. . 1,343 10

Hauling machinery and construction. 3,500 00

Lumber and boards . 574 60

$ 26,672 13

To this is added the total allowed on Lamb’s account for. construction work.,.. 5,171 00

Total $ 31,843 13

[84] In addition, .as we have already stated, there was a credit made by the master of $5 for the cost of rough and $6.70 for dressed lumber, which left a large margin for outside operating expenses, wear and tear, and ordinary repairs. As we have said, the only possible method or basis for this accounting was the one adopted by the chancellor, and any effort to state an expense account based on the books kept by Lamb would have made the total cost of producing the lumber and operating the business so much less than what we know must have been its actual cost and the actual expenses as to demonstrate the incorrectness of that method. As an illustration of this, each of the experts estimate at from two to four extra men on the rolls at not less than $1 per day, which would provide for a watchman. Lamb, in his exceptions, estimates a watchman for the mill and for the planer at $4,425. It is not suggested that the expense account of the firm as kept by Lamb showed this aggregate for a watchman. In fact, that account does not show over $1,600 as paid for a watchman during the period of that account from 1887 to the close of the business. Thus it is evident that the only possible method of stating the account was the one adopted by the chancellor.

Accompanying Lamb’s exceptons to the master’s report is an exhibit which contains a tabulated statement of the amount each item allowed by the master on the machinery account and the amount which Lamb insists is shown by the vouchers. This involves the purchase by the firm from 35 dealers in machinery. The vouchers for these purchases are voluminous and complicated, and fill nine large packages. Many of them are in a state of great confusion.- They consist of statement of account, express money receipts, draft notes, letters of acknowledgment, and correspondence. Many items for which credits are claimed appear several times on vouchers. Thus the same item for a payment is shown by an express receipt for money sent to the creditor, and again as a partial payment on account by a letter [85] of acknowledgment, and finally by an account paid in full witK tbe partial payments credited. These exceptions extend to the greater part of purchases of the $23,266.05 for machinery allowed by the master on his statement of the firm expense account. The master has filed with his report an exhibit containing an itemized statement of the amount allowed on each of the accounts of the firm of Lamb & Eowan with the different dealers, which shows the aggregate amount stated in the body of the report. We have examined particularly all of those vouchers which are involved in these exceptions, and find that in some of the accounts either freight or express charges have been added to the amount of the bill or invoice for the machinery, which was deducted by the master, and placed on the itemized statement of freight and express charges, which are allowed in the express account, and which is marked “Exhibit No. 6” to the master’s report. We find that the itemized statement of allowances for machinery purchases as made by the master is correct, except the aggregate of purchases from the Lane &■ Bodley Company allowed by the master, $6,102.67, should be $6,388.95, making a difference of $286.28, which is- claimed in the exception, and which should be added to the total expense account as settled by the chancellor.

There was $100 cash turned over to the receiver by Lamb, which should be credited on the firm expense account, and there is an item of $100 paid to Dun’s Agency by the firm, which is not controverted, and which, by omission, must have escaped the attention of the master and the chancellor. This will be placed on the expense account as a credit against the gross amount of the sales.

We have examined each question presented by counsel for the respective parties, as well as each controverted item in these complicated and extensive partnership accounts, and we are satisfied that the conclusions announced are as correct and accu[86] rate as can be reached in ,vie;w of- the confusions of the accounts and the conflicts in the testimony in the cause.

Oreen & Green and Mayes & Longstreet, for appellant, filed a suggestion of error. B. N. Miller, for appellee,

also filed a suggestion of error, making the following points:

The record shows that Rowan made every effort to settle the matter between himself and Lamb without suit, and Lamb denied his interest in the partnership, and refused all overtures for a settlement; that all the lumber sold by the firm or for the firm was sold prior to 1894; that Rowan, even after the suit was brought, tried in every way to adjust and settle the trouble, but Lamb refused to settle it. It is perfectly plain that Lamb owed Rowan the amount finally found due him, and has persistently withheld it, and Rowan was forced to sue. I suggest, then, that in due respect for justice and equity this court either ought to give Rowan interest at legal rates on this sum finally found due him by Lamb, or Lamb ought to be taxed with all the costs in the courts in this case, which is in the. court’s discretion. Qyger’s Appeal, 62 Pa., 80, 1 Am. Rep., 382; Bowling's Mews v. Dobyns’ Heirs, 5 Dana 438; Munford v. Murray, 6 Johns. Ch., 4;. Taylor v. Young’s Adm’rs, 2 Bush, 432; Stoughton v. Lynch, 2 Johns. Ch., 209.

. We have alluded in this opinion to the findings of the master, and the chancellor on the exception to the master’s report, since by the agreement of the counsel the master presided with the chancellor on the hearing of the exceptions.

The decree of the chancellor is reversed, and a final decree will be rendered in this court according to the directions indicated in this opinion. We have prepared a statement showing the state of the accounts after making thesé changes. The óosts of these appeals will be apportioned between the parties, one-third against Rowan and two-thirds against Lamb.

ON SuGG-ESTIONS OE ERROR.

[87] JohNSTON, Special Judge,

delivered tbe opinion in response to tbe suggestions- of error.

- We bave carefully reviewed tbe former decision and opinion rendered in tbis case on all of tbe propositions submtted -in tbe suggestion of error wbicb bas been presented by tbe learned counsel for H. N. Lamb. Tbe question of tbe existence of tbe partnership between Lamb & Rowan is one issue in tbe cause, upon wbicb tbe most voluminous testimony was taken. It is tbe principal issue in tbe case, and, while there is some conflict on tbe point, tbe fact of tbe partnership is proved by the great weight and preponderance of tbe evidence. We therefore adhere to tbe conclusion reached on tbe question in the former decision of tbe court. We also adhere to tbe former ruling that the partnership was an equal one, and that tbis was tbe correct basis of tbe accounting.

: In tbe suggestion of error it is insisted that $1,135, tbe proceeds of lumber sold to tbe I. C. R. R. Company in January, 1887, and alleged by Lamb to bave been paid over to Rowan, should bave been charged in tbe accounting before tbe master to Rowan. That is a controverted item in tbe accounting, and we examined fully all of tbe evidence on tbe point, reaching tbe same conclusion that was reached by tbe master and tbe chancellor. Tbis item was never charged on tbe books kept by Lamb against Rowan, and appeared in tbe cause for tbe first time in a list filed by Lamb purporting to contain debit items against Rowan, wbicb bad been accidentally omitted from tbe books. We think that tbis item was properly excluded from tbe accounting by tbe master and tbe chancellor, and we adhere to our former ruling on tbis point.

We think that tbe $500 note to White in 1884 was a firm transaction, and that tbe proceeds of tbe note went to tbe firm. Tbe argument made on tbis point by tbe learned counsel is based on certain items on account between Rowan and tbe Mississippi Mills, wbicb do not outweigh Rowan’s positive testimony that [88] the firm got in tbe proceeds of this note. Rowan’s account with, the Mississippi Mills for a time included firm transactions, so that the entries cited by counsel do not necessarily conflict with Rowan’s testimony.

The item of $360 credited to Rowan for timber furnished by him off of what are known in the record as the “Deaton Lands” is correctly settled by the former decision as a correct credit, and we adhere to our former ruling on this point.

Upon examination of the Douglas note item, we find that there were two contentions in the argument of the cause ■ — one that it was an individual matter of Rowan’s, the other that Rowans should have a credit for $75 paid by him on the note. The firm took up the balance of the note, paying $1,000, proceeds of lumber sales. It is now contended that this sum should be credited on the expense account against the gross proceeds of lumber sales. We now concur in this view, and the sum will be so credited.

The petition which is submitted by counsel for Lamb in connection with the suggestion of error, asks that this court, instead of rendering a final decree in the cause, as directed in the opinon of the court, will remand the cause to the chancery court with leave to Lamb to take further proof on the ground of newly, discovered testimony. The petition asks, in the alternative, that this court, in entering a final decree here, will do so without prejudice to Lamb’s right to file a bill of review in the chancery court on the ground of newly discovered evidence. In the case of Hall v. Waddill, 78 Miss., 16, 27 South., 936, 28 South., 831, the decree of the chancery court of Sharkey county was affirmed, and this court held in that case that snch affirmance did not affect the right of the appellant to apply to the chancery court for leave to file a bill of review for such purpose. In the case now before the court the decree of the chancery court is reversed, and, as the substantial statement of the newly discovered evidence accompanies the application to this court, it [89] is proper for us to decide whether the decree directed to be rendered here shall be a final adjudication of their protracted controversy. The newly discovered testimony consists of a statement of Mr. Ben King, of Beauregard, to the effect that in a conversation with Rowan a short time before the present suit was brought, Rowan said that there was no partnership between himself and Lamb, but only a common interest in the timber cut. This remark of Rowan’s was also heard by Mr. King’s son, who was then about nine years old. Mr. King states in a letter recently written to Lamb’s counsel that Rowan said in a conversation with him in 1884 or 1885 that he was not a partner of Lamb’s. And about the same time Lamb told him the same thing. Rowan also said that, if they did not go into partnership, they could be of assistance to each other. This testimony is merely cumulative. The evidence in respect to the issue as the partnership is voluminous and exhaustive. A great number of witnesses were examined on this particular issue. The undisputed facts of the case that a firm account was kept with the Mississippi Mills, that Rowan put money in the firm and took out profits from the partnership, and sometimes managed the mills, and that both Lamb and Rowan acted throughout the period from 1883 to about the year 1894 as partners, show that there was a partnership. We completely explored the record on this issue, and, without attempting to go into the details of the testimony, we reached the conclusion that the fact that there was a partnership, as alleged in the bill, is clearly proven by the great preponderance of the testimony. From the conduct of both Lamb and Rowan, no other conclusion can be reached. We are clearly of the opinion that the admission of the newly discovered evidence as to this casual conversation would not affect the decison of this issue. This application therefore is denied, and the final decree will be entered as directed in the opinion of the court. With the modification made in regard to the Douglas note item of $1,000, this sum will be allowed as a [90] credit on tbe expense account against tbe gross ¿mount of tbe sales of lumber.

The’appellant, by bis counsel, bas filed a suggestion of error asking tbe court to correct its former opinion in respect to tbe costs of tbe appeal and cross-appeal in this court, and, instead of taxing two-tbirds of tbe costs against tbe appellant and óne-tbird against tbe cross-appellant, to divide tbe cash equally between’tbe two partners. In tbe former decision of tbe question of costs tbe court considered carefully tbis matter, and was of tbe opinion that tbe costs should be divided, as was then directed, and-we see no reason for changing tbis direction. Tbe costs of these appeals are very large, as tbe transcript of tbe record consists of seventeen typewritten volumes, and in view of tbis consideration we gave tbis question careful attention. Tbe appellant denied tbe partnership between himself and Rowan, and upon tbis issue voluminous testimony was taken. That issue was found against tbe appellant, and tbe finding of tbe chancellor on tbis issue bas been affirmed by tbis court. Again, a great mass of testimony appears in tbis record on hundreds of controverted items in tbe accounts of tbe partnership, and in tbe individual accounts of tbe partners with tbe firm. Tbe necessity for tbe testimony was caused by tbe unsatisfactory state of tbe firm books of account which were kept by the appellant’s bookkeeper, there being an agreement between tbe partners that tbe appellant should manage tbe business and keep a correct set of books. In view of these considerations, among others, we adhere to our own former ruling in respect to tbe adjustment of tbe costs of tbe appeal.

It is insisted for Rowan in a suggestion of error that interest should be allowed to Rowan on tbe decree in bis favor against Lamb rendered by tbe chancery court and corrected by tbis court on a former suggestion of error submitted by tbe appellant. Tbe general rule, sustained by all of. tbe authorities that have been cited by counsel and by many others which we have [91] consulted, is that ordinarily interest is not allowed'on a part-; nersbip accounting. To tbis there are some exceptions, where, in the discretion of the court, interest may be allowed. We have carefully examined the cases cited by Mr. Miller on this subject. In Gyger’s Appeal, 62 Pa., 73, 79, 1 Am. Rep., 382, Judge Sharswood, after a review of authorities, states the rule to be that interest is not ordinarily allowed in partnership ac-countings, though there are exceptions to the rule, depending largely on the circumstances of each individual case. “No unbending rule can be laid down,” said the learned judge, “which would not in particular instances work great injustice.” In the case cited interest was allowed the liquidating partner for loans made to him during the liquidaton of the partnership, which were a great benefit to the partnership. In Bowling’s Heirs v. Dobyns’ Administrator, 5 Dana, 434, the venture for which the partnership was formed had ended, and a considerable balance was held by the defendant, one of the partners, until suit was brought, and he made no denial of it, aware that he owed this exact balance. The general principle was stated, and its exceptions, and the court allowed interest, because the exact balance due was not denied, and had been knowingly withheld. The court regarded this as a proper case for the application of an exception to the general rule. Taylor v. Young’s Administrators, 2 Bush, 428, was similar in its facts to Bowling’s Heirs v. Dobyns’ Administrator, and the rule in that case was followed and applied. In Stoughton v. Lynch, 2 Johns, ch. 209, compound interest was allowed by the master on partnership funds drawn out by one of the partners.and used for his private purposes. The court on appeal held that only simple interest should be charged. We infer from the opinion of the court that the only question in the case on the appeal was whether simple or compound interest should be charged. The court said that the time for interest to be charged was after the dissolution of the firm, and when a balance had been found on [92] an accounting. In Mumford v. Murray, 6 Johns. Ch., 4, the defendant was a partner, and had received large sums of money as a trustee under an assignment made to himself and one John Innis Clarke, to secure the firm of Mumford & Murray, of which firm he was a partner, and other creditors of the assignors. . He denied having received these funds, and said that his co-trustee had received them. He used these trust funds as his own. He was treated by the court as a defaulting trustee, and charged interest on the trust funds. We think all of these cases are correctly decided, but they do not furnish any authority for the allowance of interest in the case here under consideration. It was exceedingly doubtful, when the proceedings for an accounting was begun, what was the state of the account between the partners. And after the evidence was all in, and the reference had been made to the master, it was then a most intricate and difficult matter to state with accuracy a correct account of the partnership matters. We are of the opinion that no interest should be allowed at any time during the period of this accounting. ' There is no point during this whole period that can be fixed equitably as the time when interest should be charged. The accounting in the chancery court shifted from one set of balances to another. The first report of the master was set aside by the chancellor. The second report of the master was materially modified by the chancellor on both sides of the accounts. And, finally, the balances found by the chancellor in the decree appealed from have been changed by this court, and different balances directed to be struck, which has not yet been done. During this whole period of time the accounting has been in progress. The accounts in the case show that the total sales of lumber amounted to over $180,000 during the existence of the partnership. And the accounts of each partner with the firm were in many instances complicated and obscure, and so many items were controverted it was impossible to state the accounts with exactness.

[93] We will notice other leading authorities on this subject. Judge Story said that interest is not allowable in partnership accountings until a balance has been struck on a settlement between the partners. Dexter v. Arnold, 3 Mason, 284, Fed. Cas. No. 3855. Yice Chancellor' Sandford, of New York, in Beacham’s Assignees v. Eckford’s Ex’rs, 2 Sandf. Ch., 116, after review of all the authorities, came to "the conclusion that there is no general rule established, but that the allowance or refusal of interest depends upon the .circumstances of each particular case. Judge. Sharswood, in Gyger’s Appeal, 62 Pa., 79, 1 Am. Rep., 382, approved this rule, saying: “This seems much the safest principle to adopt in view of the confidential relation of the parties and the variety and complication of such accounts.” Lindley says that the general rule is that interest is not allowed in partnership accountings. Lindley on Partn. (4th ed.), 786. It is said in various cases that there is no fixed rule on the subject as to what circumstances may call for the allowance of interest. And it may be said that Judge Shars-wood stated the rule correctly to be that each depends upon its own peculiar facts and circumstances. This was held in Buckinham v. Ludlum, 29 N. J. Eq., 350; Johnson v. Hartshorne, 52 N. Y., 173; Gyger’s Appeal, 62 Pa., 73. The following cases also hold this doctrine: Moss v. McCall, 75 Ill., 190; Tirrell v. Jones, 30 Cal., 665; Whitcomb v. Converse, 119 Mass., 38, 20 Am. Rep., 311; Tutt v. Land, 50 Ga., 339. It has also been held that a partner is not entitled to interest on money advanced to or deposited with the firm for its use, unless there be a special agreement to that effect. Lee v. Lashbrooke, 8 Dana, 214; Day v. Lockwood, 24 Conn., 185; Dosha v. Smith, 20 Ala., 747. We announce as our conclusion on this subject that the general doctrine is well settled that interest in an accounting between partners is not allowed. The exception is that a court of equity may allow interest where, in view of the particular facts of a case, it is just and equitable to make the [94] allowance. All of the cases that we have examined bold in the broadest'terms that in tbe exceptional cases the allowance or disallowance of interest in an accounting between partners is within the discretion of the court. Exercising this discretion according to our views and convictions of the circumstances of this particular case, we adhere to our former ruling on this question.

Green & Green and Edward Mayes, for appellant,

after the delivery of the foregoing opinions,, made a motion to correct the decree.

R. N. Miller, for appellee, opposed the motion.

It is also suggested by counsel for Rowan that he should be allowed the statutory damages on the amount found to be due him. This cannot be allowed, as the decree rendered for Rowan in the chancery court has been reversed on Lamb’s appeal.

The suggestion of error for Rowan and the suggestion of error for the appellant are overruled.

The following opinion was delivered on the motion:

Per Curiam.

The motion of the appellant to correct the decree which has been entered in this court by inserting in the decree for sale the timber on what are known as the “G-riffin Lands,” has been carefully considered. The question presented is whether the tmber on these lands, described in the motion, are partnérship property or the private property of E. A. Rowan. We have examined the proof on the question, and find that the evidence is conflicting on this issue; but the title was taken in the name of Rowan, and he testified that the land and timber were bought by him and were paid for with his private funds. In view of the fact that the firm bought a large quantity of land as partnership property, taking the title in the partners, and that Lamb purchased property during the partnership for him[95] self, paying for it with bis own funds, and that Rowan did the same for himself, the consideration that the title to the G-riffin lands was taken in Rowan, together with the manner in which the partners made their land purchases, as stated, should be controlling in view of the conflict in the testimony as to the funds supplied in the purchase of the timber in controversy.

The motion is overruled.

Judge Calboon, having been oí counsel in tbe cause before bis appointment to tbe bench, recused himself, and Frank Johnston, 'Esq.., a member of tbe supreme court bar, presided in bis place.

Lamb v. Rowan, 83 Miss. 45 (Mich. 1903).

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