MacPherson v. Harding

D.C. Circuit

MacPherson v. Harding

40 App. D.C. 404, 1913 U.S. App. LEXIS 2091

CourtCourt of Appeals for the D.C. Circuit

DecidedMay 5, 1913

DocketNo. 2499

StatusPublished

Cited by1 cases

This text of 40 App. D.C. 404 (MacPherson v. Harding) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

MacPherson v. Harding, 40 App. D.C. 404, 1913 U.S. App. LEXIS 2091 (D.C. Cir. 1913).

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Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The acceptance and acknowledgment of the balance as shown by plaintiff’s account made it an account stated, from which facts the law implies a promise to pay. The account stated is prima facie correct, and cannot be impeached save for fraud, error, or mistake. Gordon v. Frazer, 13 App. D. C. 382-387. An offer of evidence, on behalf of defendants, to show that “the action taken in the February 26th meeting of [408]*408the Eleventh and E. street Syndicate was reconsidered,” was rightly denied. Whether the offered proof was intended to go any farther than to show what had already been proved, namely, that the assessment had been reconsidered, does not appear. Assuming, however, that it contemplated showing that the acceptance and approval of the indebtedness stated in the account had been rescinded, we perceive no error in its exclusion. The acceptance and approval having been made, the liability to pay at once arose, and a subsequent withdrawal of that acknowledgment is inoperative, unless supported by evidence tending to show fraud, error, or mistake. There was no plea to that effect, and no evidence whatever was attempted to be introduced.

2. The chief contention on behalf of the appellants is that there was a relation of partnership between plaintiff’s testator and the other members of the syndicate; and for that reason there could be no account stated between them, and no action at law thereon between partners. The argument on the point has taken a wide range as to the existence of a partnership, the right of a partner to sue copartners at law, the effect of the death of Harding as working the dissolution of the partnership, etc.

Being of the opinion that the syndicate was not a partnership, it is unnecessary to discuss the related questions. The parties did not enter into a partnership to purchase the land, nor were partnership funds used in paying for it. It was a single, special adventure on joint account, involving the payment in equal proportions of designated sums of money. There was a mere community of interest in the property. The purchasers were not partners, but tenants in common. Clark v. Sidway, 142 U. S. 682-690, 35 L. ed. 1157-1160, 12 Sup. Ct. Rep. 327; Starkweather v. Dyer, 30 App. D. C. 146—149. The action is maintainable at law upon the account stated.

3. No notice was taken of the fact that a proportion of the indebtedness shown in the account was chargeable to the shares of Harding in the land of the syndicate. The assessment ordered to meet this indebtedness, but subsequently recalled, contemplated that the estate should bear its part of the same, and [409]*409call was made upon it therefor. Had the assessments been prosecuted to collection by the trustees, as originally contemplated, the estate’s proportion would have gone into their hands with that of others, and been appropriated to the payment of the indebtedness. Since the assessments were not proceeded with to collection, and the plaintiff was put to her action at law, the defendants are only liable for their proportion of the debt. To compel them to pay the whole would therefore be unwarranted and unjust. As there are twenty-eight shares, the liability of each is one twenty-eighth of the amount. This one twenty-eighth amounts in round numbers to $87.50. The estate of Harding owning two and one half shares, its proportion of the whole amounts to $218.75, which the jury should have been directed to deduct from the amount of the account, leaving the same $2,226.66, for which the verdict should have been returned. The attention of counsel or the appellee having been called to this condition on the argument, they agree to remit the said sum, found to be $218.75.

The remittitur is allowed and approved, and the judgment is modified in accordance therewith, to read $2,226.66, instead of $2,445.41, as entered; and, as so modified, is affirmed, with costs. Affirmed.

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Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The acceptance and acknowledgment of the balance as shown by plaintiff’s account made it an account stated, from which facts the law implies a promise to pay. The account stated is prima facie correct, and cannot be impeached save for fraud, error, or mistake. Gordon v. Frazer, 13 App. D. C. 382-387. An offer of evidence, on behalf of defendants, to show that “the action taken in the February 26th meeting of [408]*408the Eleventh and E. street Syndicate was reconsidered,” was rightly denied. Whether the offered proof was intended to go any farther than to show what had already been proved, namely, that the assessment had been reconsidered, does not appear. Assuming, however, that it contemplated showing that the acceptance and approval of the indebtedness stated in the account had been rescinded, we perceive no error in its exclusion. The acceptance and approval having been made, the liability to pay at once arose, and a subsequent withdrawal of that acknowledgment is inoperative, unless supported by evidence tending to show fraud, error, or mistake. There was no plea to that effect, and no evidence whatever was attempted to be introduced.

2. The chief contention on behalf of the appellants is that there was a relation of partnership between plaintiff’s testator and the other members of the syndicate; and for that reason there could be no account stated between them, and no action at law thereon between partners. The argument on the point has taken a wide range as to the existence of a partnership, the right of a partner to sue copartners at law, the effect of the death of Harding as working the dissolution of the partnership, etc.

Being of the opinion that the syndicate was not a partnership, it is unnecessary to discuss the related questions. The parties did not enter into a partnership to purchase the land, nor were partnership funds used in paying for it. It was a single, special adventure on joint account, involving the payment in equal proportions of designated sums of money. There was a mere community of interest in the property. The purchasers were not partners, but tenants in common. Clark v. Sidway, 142 U. S. 682-690, 35 L. ed. 1157-1160, 12 Sup. Ct. Rep. 327; Starkweather v. Dyer, 30 App. D. C. 146—149. The action is maintainable at law upon the account stated.

3. No notice was taken of the fact that a proportion of the indebtedness shown in the account was chargeable to the shares of Harding in the land of the syndicate. The assessment ordered to meet this indebtedness, but subsequently recalled, contemplated that the estate should bear its part of the same, and [409]*409call was made upon it therefor. Had the assessments been prosecuted to collection by the trustees, as originally contemplated, the estate’s proportion would have gone into their hands with that of others, and been appropriated to the payment of the indebtedness. Since the assessments were not proceeded with to collection, and the plaintiff was put to her action at law, the defendants are only liable for their proportion of the debt. To compel them to pay the whole would therefore be unwarranted and unjust. As there are twenty-eight shares, the liability of each is one twenty-eighth of the amount. This one twenty-eighth amounts in round numbers to $87.50. The estate of Harding owning two and one half shares, its proportion of the whole amounts to $218.75, which the jury should have been directed to deduct from the amount of the account, leaving the same $2,226.66, for which the verdict should have been returned. The attention of counsel or the appellee having been called to this condition on the argument, they agree to remit the said sum, found to be $218.75.

The remittitur is allowed and approved, and the judgment is modified in accordance therewith, to read $2,226.66, instead of $2,445.41, as entered; and, as so modified, is affirmed, with costs. Affirmed.

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40 App. D.C. 404, 1913 U.S. App. LEXIS 2091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macpherson-v-harding-cadc-1913.

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