Thompson, Adm'r v. . Rogers

69 N.C. 357

• Court: Supreme Court of North Carolina
• Decided: June 5, 1873
• Status: Published

Opinion

Settle, J.

The defendant and one Peleg Rogers entered intered into a mercantile partnership in 1858, by which they agreed to share equally the losses and profits of the concern. In February, 1863, Peleg<Rogers died, and during . the/month the plaintiff beeame'-bis ¿administrator. ' •

At Spring Term, 1868, the .plaintiff-.filed a. bill for. a- set•..tlement of the partnership, and at Spring''Term, -1869, a .commissioner was -appointed to state';the account of the-defendant' as surviving.-partner '; óf the firm of-'P. &B.' Y. -Rogers. The - case áse now -before us; by. appeal :from the rilling of his Honor overruling; the report of "the cornmis- - sioner. Wé do not- concur; either, with. the commmissioner or with his Honor.

The plaintiff seeks, to charge the defendant with-one-half of the value of a certain lot of cotton belonging to the firm, at the death of the plaintiff’s intestate. The facts necessary to a full understanding of the controversy are that the defendant in April, 1863, as surviving partner, sold a lot of cotton belonging to the partnership at public auction; that the plaintiff, administrator of Peleg Rogers, gave his consent and approbation to said sale as administrator, and was present at the same; that the terms announced publicly on the day of sale and concurred in by the administrator were a credit of six months, purchaser to give note, and such currency as should be in circulation when the note fell due would be received in payment of the same.

The cotton was purchased by one Calvin J. Rogers on account of himself and his partner, B. Y. Rogers, and they executed a note Avith security for the payment of amount bid. The note became due October 20,1863, and was immediately discharged, amounting-to $5,681.50, by payment, to B. Y. Rogers as surviving partner, to whom it was made paj^able when executed.

The defendant immediately tendered one-half of said amount to the plaintiff, who refused to receive it. The defendant then consulted counsel, and acting- under .their advice, funded, as surviving partner, the share of P. Rogers, deceased, and obtained a certificate'- for four per cent, regis tered bonds of the Confederate States, which certificate he-has filed with the papéís-in the suit.

The commissioner failed to charge the defendant with ¡ánything.on’ account of She cotton,' but his Honor held that •he should, be- charged*with - the .-value -of, the -.cotton and interest from the day of. sale; the value to ‘be ascertained by applying, the scale to the amount bid for the,cotton. .

The defendant received $5,681.50, the the full price Of the cotton, for and on behalf of the partnership.

He seems ¡to have-acted in.¡good ..faith, and in his.seftlement.with the partnership he should; be allowed,, as .a credit, the certificate for registered bonds ,-of the Confederate States, but as he retained $2,840.75 of the, cotton money he is clearly liable to account therefor to the partnership. In other words, he held the whole amount' for the .firm, and the firm lost that which was funded in Confederate bonds, and the firm is entitled to divide- that which was not lost. But the scale as applied to contracts generally does not apply in this case. The defendant was acting in good faith in a fiduciary character, and is liable only for the value of the Confederate money at the time when it came into his hands.

There was error to the extent indicated.

Let this be certified.

Pee Curiam. Decree accordingly.