Moore v. Stone

50 Ga. 157

• Court: Supreme Court of Georgia
• Decided: July 15, 1873
• Status: Published

Opinion

McCay, Judge.

1. This, as appears by the record, is simply an action upon an account as for articles sold and delivered, though it is added in the writ that the account arose in certain dealings between the parties in making a crop together. The plea sets up that the parties had contracted to farm together, and had gone to work under the contract; that, in April, they abandoned their first contract and made another, and that a crop was made under this second contract. And the plea sets up, or attempts to set up, the rights of defendant under these circumstances as an off-set to the plaintiff’s demand. The declaration and plea both confuse and confound the claims of both parties as individuals and as partners. Under our law, one partner may sue another at law, even concerning the partnership, if there has been a settlement; or, if he can make out his case, we see no reason why he may not charge him with a general balance and show that if a settlement were had, so much would be due. As an action to recover the balance due on a settlement of the affairs of the joint adventure, neither the declaration nor the plea makes out a case. Since each, in his account, sets up simply, not the balance due, but the separate claims of each, we are inclined to think, from the evidence, that neither of the two contracts can be enforced. The first, because it was abandoned; the second, because it was never carried into effect, and that, unless the statement of L. Moore proves a new contract, the real relations between these parties can only be settled on the principles of ex equo et bono. If L. Moore’s testimony makes a new contract, then there ought to be no real difficulty. Stone is to be treated as a renterías such, the whole crop is his, and Joseph Moore is to be charged with all he got of the crop, or all he has got, in any way, belonging to Stone, and is to be credited with all of his account against Stone for supplies and advances, including the hire of his mule, and a reasonable rent for his land.

The statement made out by L. Moore, if his evidence is to be taken, as a new contract, would perhaps be very fair, if it credited Joseph Moore'with his one-fourth of the corn. We cannot find any such credit. The proof is that there was over eight hundred bushels of corn made. Joseph Moore is charged with having ¡received a certain number of bushels, but he is credited with no rent corn. If he has to pay for what corn he has got he ought to be credited with his one-fourth rent. This, L. Moore’s written statement fails to do, and it is that far incorrect, according to his own evidence, unless, indeed, the com charged is what Joseph Moore got, over and above his one-tourth for rent, though this does not appear.

As the charge of Judge Andrews directed the jury, in case the other contracts were abandoned, to find a verdict according to L. Moore’s testimony, and as they found exactly according to the account made out and balanced by him, and, as it appears to us, that this calculation does not (as it says nothing about the rent corn) cover the new contract he testified to, we think the verdict ought not to stand. We think, too, that it was improper in the Judge to say to the jury that they must find according to L. Moore’s testimony. L. Moore’s statement may be strong evidence, and a jury might very well be satisfied that the items and their prices, that day set down and agreed to, furnish a better rule for ascertaining the true amount of Joseph Moore’s advances and receipts, than his present statements. But there is nothing in L. Moore’s account of things that makes what was done that day an estoppel on either party, and it was not proper in the Judge to shut the jury up to the consideration of L. Moore’s account of what took place, and to deny to them the right to consider defendant’s present statement of what he furnished and what he got.

2. If we could see in this account made out by L. Moore, any credit to Joseph Moore for his rent corn, we should not send the case back, for his statement is very reasonable and fair, except that it seems to us he fails to allow Joseph Moore any rent corn. We may also say that we are unable to see how he got the final balance to be what he has made it. He says that he made it only $100 00, counting the rent at one-fourth of the cotton, and that he changed this by only allowing one-fifth of the cotton. The difference between one-fourth and one-fifth of $2,149 86, is $98 19. If this be added to $100, it only makes $198 19, whilst the balance as it appears in the written statement is $334 09. We cannot help thinking there is some mistake of L. Moore in both those particulars.

Judgment reversed.