Allen v. Woodson

• Decision Date: 31 July 1873
• Parties: JOSEPH ALLEN, administrator, plaintiff in error. v. MARTHA F. WOODSON, executrix, et. al., defendants in error.
• Court: Georgia Supreme Court

50 Ga. 53

JOSEPH ALLEN, administrator, plaintiff in error. v. MARTHA F. WOODSON, executrix, et. al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Equity. Discovery. Amendment. Charge of Court. Jury. Receipt. Before Robert P. Trippe, Esq, Judge pro hac vice. Upson Superior Court. May Term, 1872.

Joseph Allen, as administrator of Xenophon Bowdre, deceased, 61ed his bill against Martha F. Woodson, as executrix, *and Benjamin Bethel, as executor, of William D. Woodson, deceased, and Emma R. Redding, as administratrix of Thomas J. Redding, deceased, making, substantially, the following case:

On or about the 8th of August, 1859, William D. Woodson and Xenophon Bowdre were partners doing a mercantile business in the town of Thomaston, under the firm name of Woodson & Bowdre. They had carried on said business under said firm name in said place for several years prior to that date. On said day the partnership was dissolved by mutual consent, and Bowdre retired from business, leaving all of the assets of said firm in the hands of Woodson. Soon after the dissolution aforesaid, Woodson formed a partnership with one Thomas J. Redding, under the firm name of Woodson & Redding, and the said last named firm did business in said place from some time in August, 1859, to August, 1864, when the said copartnership was dissolved by the death of Redding. During the continuance of the last named firm, Woodson, having in possession the assets belonging to the late firm of Woodson & Bowdre, carried into the business of the said Woodson & Redding a large amount of said assets, with the knowledge and consent of Redding. Bowdre knew nothing of the use of the assets of Woodson & Bowdre by Woodson & Redding, nor the amount of the same, nor were these facts known to complainant until after he became the administrator of Bowdre, and the amount of said indebtedness was not known to complainant at all. Not knowing the amount so transferred and used by them, and believing and alleging that the books were destroyed, complainant prayed that defendants should discover the amount, and should particularly discover any and all evidences of the use of the money as charged, and prayed that defendants should account and settle fully as to all of the affairs and assets of Woodson & Bowdre which had gone into the hands of Woodson & Redding as charged, or that had been used by them, and prayed that de-fendants should be decreed to pay over to complainant, as administrator, his intestate\'s half of said assets so used. *The bill was filed in October, 1868. Subsequently, on the 20th of October, 1871, it was amended by praying specifically for payments of rents due for the use by Woodson & Redding of the store-house belonging to Woodson & Bowdre. This amendment was demurred to and disallowed, because it was filed after January 1st, 1870.

At the May term of 1872, complainant having ascertained that the books of Woodson & Redding were in existence, and that said books showed the amount of the assets of Woodson & Bowdre used by Woodson & Redding, except the use of the store-house, and being able to prove the use of the storehouse, without resorting to the conscience of defendants, amended his bill by striking out the prayer for discovery from either or all of the defendants. This amendment the Court refused to allow for the purpose of waiving the answers of the defendants.

The answer of the defendant, Emma R. Redding, administratrix, is unnecessary to an understanding of the questions passed upon by the Court.

Martha F. Woodson, executrix, answered, substantially, as follows:

She admits the facts as to the copartnership of Woodson & Bowdre up to 1859, the dissolution and Bowdre's retiring; admits the formation of the partnership between Woodson & Redding, and its continuance to the death of Redding in August, 1864; she admits the death of Woodson, and that she is the executrix; she discloses the fact that the books of Woodson & Redding are in existence, and are in her possession, but she denies that they furnish any evidence whatever of any indebtedness on the part of Woodson & Redding to Woodson & Bowdre; she denies any indebtedness on the part of Woodson & Redding to Woodson & Bowdre, in any manner, and gives as a reason that, on the 1st day of September, 1866, Woodson & Bowdre, only a few days before the death of Woodson, had a full and final settlement of all matters between them or thefirms, and tenders a receipt, claiming it as evidence of the same; she admits, that at the time of the *death of Woodson, in 1865, the firm of Woodson & Redding was indebted to the firm of Woodson & Bowdre, but says that the same was evidenced by two notes, or merchants\' tickets; that Woodson, on his death-bed, told her that these two notes were due by Woodson & Redding to Woodson & Bowdre; she admits that Woodson died in September, 1866, and that after her qualification as executrix, to-wit: in 1868, she allowed her co-executor, Benjamin. Bethel, (since resigned), to pay the one-half of the principal and interest on said notes, to-wit: about $1,400 00, or some such sum, and sets up this as a payment in full of all matters between them or the said firms, and tenders the receipt of com-plainant as evidence of a full settlement; she says that the books of Woodson & Bowdre were kept in the store of Woodson & Redding, and that the collection of the accounts, notes, etc, was given to Bowdre; that he rode several days endeavoring to make collections, but she does not know that he ever collected one dollar; she denies that Woodson ever collected any money which he did not properly account for, and giving as a leason for so stating, that on one occasion she knew him to collect $122 00 and divide it with Bowdre; she denies that Woodson & Redding ever borrowed any money of Woodson & Bowdre, or that they ever used any of the money of Woodson & Bowdre.

Benjamin Bethel, executor of Woodson, answered, in substance, as follows: He knew nothing of any indebtedness on the part of Woodson & Redding to Woodson & Bowdre, except that which was evidenced by a due-bill and a merchants' ticket found in the papers of Woodson & Bowdre, and one-half of which was paid to complainant, in 1868. Woodson & Bowdre had some uncollected notes and accounts against persons with whom they traded as merchants, and after the qualification of Bethel, as executor, Bowdre and himself agreed to divide them; the division was made, all but delivering to Bowdre his share of the uncollected demands, and Bowdre's death prevented a complete settlement by the division of these assets. At this time nothing else was attempted to be settled but a division of the assets of Woodson & Bowdre as aforesaid, *and no claim was made by Bowdre of any amount being due by Woodson & Redding to Woodson & Bowdre. After the death of Bowdre, Bethel divided the notes and accounts belonging to Woodson & Bowdre with complainant.

Subsequently Mrs. Woodson filed an explanatory answer, in substance as follows: She says the books of Woodson & Bowdre, after the dissolution, were kept in the store of Woodson & Redding; that they were open to the inspection of Bowdre as well as Woodson, and that she is satisfied that Bowdre collected a large amount of said assets and appropriated such collections to his own use; she denies that Woodson ever collected or used any of said assets, but amits that from a careful examination of the books of Woodson & Redding, she thinks that they do show that Woodson & Redding received from, or borrowed money of Woodson & Bowdre; she says these transactions were mutual between the two firms, and she thinks they were all settled up before the death of said Woodson; she says she is strengthened in this supposition from the fact that, in the year 1864, the books of Woodson & Bowdre being destroyed, they were unable to make an accurate settlement, and they agreed upon a plan of dividing the money on hand, and such assets as might be collected, as fast as collected, and that a few days thereafter Bowdre receipted Woodson & Bowdre, and Woodson receipted Woodson & Bowdre, each for $1,452 35; she admits that she cannot say that the foregoing is a settlement in full of all matters, but she is inclined to think it is so, and pleads this settlement in bar of any recovery; she says she has personal knowledge of money collected for Woodson & Bowdre being equally divided between them, but she does not give any amount; she admits that the books of Woodson & Redding do show entries of indebtedness from Woodson & Redding to Woodson & Bowdre, which entries she says she did not understand when she filed her first answer, and she thinks these entries, if they show any indebtedness at all, are over-balanced by other entries in favor of Woodson & Redding and against Woodson & Bowdre; she says the date of the last entry, *showing indebtedness, was in 1860, and pleads the statute of limitations; she says Woodson had money sufficient to advance his full share of the capital stock in the firm of Woodson & Redding, and had no necessity for borrowing or using the money of Woodson & Bowdre, in said firm business of Woodson & Redding; she says that on the 1st day of September, 1866, two notes held by Xenophon Bowdre against W. D. Woodson, individually for several thousand dollars, were settled in the following manner: An account held by William D. Woodson, individually, against Xenophon Bowdre, and an account in favor of Woodson & Redding against Xenophon Bowdre, individually, were brought against the two notes belonging to Bowdre, and the balance then due Bowdre on the two notes was paid by Woodson in tobacco; she insists that this shall be considered as a final settlement of all matters between them, both as individuals and as members of the two firms, and makes an exhibit of this settlement, pleading the same in bar of a recovery; she says she made a mistake in her or ginal answer, wherein she said that...