Nixon v. Chatfield

2 Cin. Sup. Ct. Rep. 76

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1871
• Status: Published

Opinion

Tart, J.

The evidence offered by the plaintiff does not go very far toward making out a case against the affidavits offered by the defendants.

But I do not propose on this motion to try the case. The question for me to decide is, whether the plaintiff has made it appear, by his evidence, reasonable and right that he should have inspection of those books. It is very clear that if there is any ground for an investigation at all of this controversy, the books contain the evidence which is to determine the case, in all probability; and outside of the books, we must expect a very imperfect showing. I do not think it reasonable to require a strong case to be made out by the plaintiff before giving him an opportunity to examine those books. Mere groundless suspicion is not enough. But those books contain the history of the joint business of these parties, and if there is any real ground of controversy between these parties to this settlement, as to the amount of profit or of losses, Nixon has a strong claim to see those books. It is true that he and his partners agreed upon a settlement by which they took the property and business, and the books properly passed, with the property, to them. But, nevertheless, I think there remained still in-Nixon a contingent interest, in the record of the transactions of the firm of which he was a member. It is not necessary to say that this amounts to a property in those books.. But if he has occasion to look into those books, or thinks he has, and makes a civil application to see them, and is refused, that refusal itself, taken with the fact asserted by him and his book-keeper, that he has not had an opportunity to advise himself of what they contain, is a circumstance that suggests the propriety-of an examination.

It may be, that Mr. Nixon’s grounds for supposing that he has been wronged, will prove groundless. That is quite probable. Both parties were out of humor with each other, and suspicious. The plaintiff' seems, by the defendant’s affidavit, to have been dissatisfied at the time of the settlement, and to have given a halting and unwilling assent to it.

Now, he declares, in substance, that he was not prepared to make an intelligent settlement for want of a knowledge of the contents of those books.

Considerable effort seems to have been made to have a finality. But in matters of such magnitude, neither party is likely to remain satisfied, if not fully advised of the grounds on which he acts. Such finalities are apt to break out again.

It is quite probable that if the plaintiff had been allowed to make the desired examination of the books with his book-keeper, he would have been satisfied, and this litigation would have been spared.

In coming to a conclusion on this motion, the case looks to me very different from the case of one who should be demanding permission to inspect books of other men, in which he had never had any joint interest. I can see no hardship or danger to the defendants, in allowing the plaintiff to have inspection of these books, and I have concluded to grant the order.

I trust the parties will be able to agree upon the manner in which the plaintiff shall have access to these books, so that no more special order may be necessary as to the manner in which inspection shall be had.