Moors v. Bigelow

32 N.E. 900, 158 Mass. 60, 1893 Mass. LEXIS 229

Opinion

Knowlton, J.

The principal question that arises on this appeal is whether there was evidence to sustain a finding that would warrant the decree which was entered. The evidence is reported at length, and the judge rightly found from it an understanding or agreement of the parties that their settlement of the affairs of the copartnership should be made on the basis of a payment by the defendant to the plaintiff of the balance due, as shown by a proper adjustment of all the accounts on the books of the firm. The evidence tended to show that $344.58 was paid over as that balance, and that an item of $2,250 in favor of the plaintiff, which should have been included, was omitted. The evidence well warranted the finding that this omission was made by a mistake of the plaintiff, and either by a mistake of the defendant or with knowledge that it was not included, and that the plaintiff was acting in the belief that the account stated was correct. In either view, the plaintiff is entitled in equity to a correction of the mistake, and we discover no error in the proceedings.

If the objections to the exclusion of evidence are open on this appeal, the rulings of the court appear to have been correct.

Footnotes

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* The inquiry was in regard to the contract of settlement and the reasons and motives for making it. Whether the plaintiff did or did not subsequently advance the overdue interest on the first mortgage was immaterial, as affecting the situation at the time the arrangement between the plaintiff and the defendant was made. Decree affirmed.

The evidence excluded was whether the plaintiff, subsequently to the settlement, advanced the overdue interest on a first mortgage of property, a second mortgage of which was held by him as collateral security for an account guaranteed by the defendant in the settlement.