Bollmann v. Bollmann
| Decision Date | 26 February 1875 |
| Citation | 6 S.C. 29 |
| Parties | BOLLMANN v. BOLLMANN. |
| Court | South Carolina Supreme Court |
BEFORE GRAHAM, J., AT CHARLESTON, JUNE TERM, 1874.
This was an action by Caroline A. Bollmann, administratrix of Henry Bollmann, deceased, against Behrend Bollmann for an account of partnership property and effects of the firm of Bollmann Brothers.
The complaint alleged that a partnership between the deceased and the defendant, for the purpose of a general grocery business existed from January 1, 1857, up to 23d day of February 1870, when the said Henry Bollmann died intestate; that on the 21st July, 1870, letters of administration upon the estate of the intestate were granted by the Judge of Probate to the plaintiff; that the interests of the partners were equal participation in the profits; that there had been no settlement up to the time of the death of Henry Bollmann of the partnership affairs; that the defendant is in possession of the books and papers of the firm of Bollmann Brothers including their books of account, and that the defendant has been called upon to exhibit the same or submit a statement thereof, and in reply to said demand has submitted an incorrect statement thereof; that plaintiff being dissatisfied with the first statement submitted by defendant, the defendant submitted a second statement, different from the first, but that also is incorrect; that a balance sheet of Bollmann Brothers shows the profits of the concern to have been $257,594.75. Said balance sheet was attached to the complaint.
The complaint prayed an account of said copartnership transaction from the commencement to the close thereof, and that the defendant be decreed to pay to plaintiff the amount found to be due.
The defendant answered and admitted a copartnership existed as stated, but denied that the interest of the copartners were equal. Said there were no written articles of copartnership, but that the defendant was to receive two-thirds, and plaintiff's intestate was to receive one-third, of the net profits of the business, and that this division was to be subject to an interest account on the capital contributed by the partners respectively.
The defendant denied the correctness of the balance sheet showing profits of the concern, and falsified the same. Defendant offered to settle on certain terms stated, and denied that complainant is entitled to any such claim as set up in the complaint.
The defendant also said the terms of the copartnership were changed on 7th January, 1870, and that Diedrich Bollmann was taken in as a partner in the concern, and was to receive a certain interest therein, and that said Diedrich Bollmann is a necessary party to this action.
On the 17th of May, 1873, by consent of the attorneys, it was ordered by the Circuit Court [a]
The trial commenced before said Referees under said order on the 9th June, 1873, and continued from time to time till the 8th June, 1874.
On June 11th, 1874, the Referees filed their report as follows:
" By an order of your Honor, this case was referred to us in these words: [Here follows a copy of the order.]
In execution of this order, the Referees beg leave to report that they have been attended by the attorneys of the parties; that they have subjected the books of Bollmann Brothers to a searching examination; that they have also examined witnesses produced by both parties, and that they find the assets of the copartnership to consist of:
Of the above amount of thirty-two thousand and ninety dollars and thirty-five cents, ($32,090.35,) which is the share to which the estate of Henry Bollmann is entitled, we find that the administratrix has already received the sum of twenty-eight thousand nine hundred and fifty-nine dollars and forty-eight cents, ($28,959.48,) which would leave a balance of three thousand one hundred and thirty dollars and eighty-seven cents, ($3,130.87,) to which should be added interest to date, four hundred and eighty-eight dollars and sixteen cents, ($488.16,) which will make the total amount of realized assets yet to be paid to the estate of Henry Bollmann three thousand six hundred and nineteen dollars and three cents ($3,619.03.)
We find that in addition to the above there yet remains the following unrealized assets, subject to division in the same proportions as determined in relation to the realized assets, viz.:
| Bond of G. Byrns | $ 1,000 00 |
| State stock | 600 00 |
| Uncollected open accounts and bills receivable | 57,692 18 |
Five shares Wando stock.
Real estate in Orangeburg County.
" We recommend that these unrealized assets be placed in the hands of Wm. St. J. Jervey, Henry A. DeSaussure and Charles S. Campbell, as Receivers, with power to collect the same by suit, sale or compromise.
It is agreed that the $2,000 allowed the Referees be paid by the defendant, Behrend Bollmann, and credited to him in the partnership account.
We are of opinion that the costs of the case, other than those already provided for, be paid from the copartnership fund, so that they fall upon the parties in proportion to their interests therein.
The Referees are unanimous in all their findings and report, except in the matter of the shares of the copartners hereinbefore mentioned, and in the matter of Devereux's bill of $608.45."
To this report the following exceptions were filed by the plaintiff's attorneys, DeSaussure & Son:
The plaintiff excepts to the report of Messrs. C. Wulbern, J. D. Mitchell and C. Matthews, Referees, herein filed on the eleventh day of June, 1874:
1. For that the said Referees reported: " It is agreed that the $2,000 allowed the Referees be paid by the defendant, Behrend Bollmann, and credited to him on the partnership account; " whereas they should have found and reported that the $2,000 allowed the Referees constitute a part of the costs of this action, and should abide the final adjudication of the Court in regard to all the costs of this action, and meanwhile it is agreed shall be paid by the defendant subject thereto.
2. For that the said Referees reported: " We are of opinion that the costs of the case other than those already provided for be paid from the copartnership fund, so that they fall upon the parties in proportion to their interest therein; " whereas they should have found and reported that the plaintiff having recovered a larger sum than by the defendant was ever admitted to be due him in the account, the cost of this action, including as a part thereof the $2,000 allowed the Referees and such amount as has been paid J. D. Mitchell for examining the books, be paid by the defendant, Behrend Bollmann, individually.
And the following additional exceptions to said report were filed by the plaintiff's solicitors, Corbin & Stone:
Exceptions to the report of James D. Mitchell, Chistopher J. Matthews and C. Wulbern, Referees, to whom said cause stands referred, filed by Corbin & Stone, solicitors for plaintiff:
Exception 1. This cause was referred, by order of May 17, 1873, to said Referees to hear the evidence and determine all questions raised by the complaint and answer and certify their decision to this Court. In other words, to hear and decide the whole issue, whereby it became the duty of said Referees to hear all legal evidence upon the issues made by the pleadings and state the facts found and the conclusions of law separately. Said report, as made and filed, does not state the facts found upon the numerous and material issues made by the complaint and answer upon which testimony was produced, and upon which it became,...
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