Error
to circuit court, Knox county.
The
original action was brought by Edwin D. Bryant against Joseph
C. Swetland and Byrom L. Swetland, in the court of common
pleas of Knox county, on the 9th day of January, 1883. The
petition alleges that ‘ on the 16th day of August, A.
D. 1871, plaintiff and the defendant Byrom L. Swetland were
partners in the city of Mt. Vernon, Knox county, Ohio, in the
dry goods business, and were in failing circumstances, and
unable to meet their debts them due and to become due; and
that in order to effect a compromise with their creditors
who were mostly eastern wholesale merchants, and to prevent a
sacrifice of their stock of goods, they entered into a
contract with the defendant Joseph C. Swetland, who is a
brother of his co-defendant, Byrom L., by the terms of which
contract plaintiff and his then partner, Byrom L. Swetland
sold and transferred all their stock of goods, then invoiced
together with the fixtures about and in their business house
and accounts due said firm, amounting, after taking out 10
per cent. discount, to the sum of $15,884.13. Said Joseph C
Swetland, by the terms of said contract, was to use the
amount of property and accounts above sold and transferred to
him, in payment of the debts of said firm, by way of
compromise, as he should be able to obtain said claims
against said firm; said Joseph C. Swetland not to pay out on
the said claims against said firm of Swetland & Bryant a
sum exceeding the sum of $15,839.74, and the said Joseph C.
Swetland was to pay the balance, after paying debts of firm,
to this plaintiff and his co-defendant, Byrom L.
Swetland.’ The petition further alleges that at the
time the contract was entered into the total indebtedness of
the firm was $15,657.58; that Joseph C. Swetland took
possession of the stock of goods, fixtures, and accounts,
under the contract, and ‘ entered upon and executed the
trust created by said contract, and settled and compromised
and paid off the debts of said firm.’ The names of the
creditors of the firm, together with a statement of the
amount due each creditor, and of the amount paid by Joseph C.
Swetland in satisfaction of each claim, are set forth in the
petition. It is further averred that the ‘ whole amount
paid by said defendant Joseph C. Swetland, in payment and
satisfaction of all the claims against the firm of Bryant
& Swetland, was $12,668.16, and no more, and leaving a
balance in the hands of said Joseph C. Swetland, after paying
all the debts of the said firm, to the amount of $3,215.97;
that all said claims against said firm of Swetland &
Bryant were compromised and paid off in the fall and winter
of 1871, and plaintiff repeatedly requested Joseph C.
Swetland to account to him and his copartner for the balance
in his hands after paying debts of said firm, but the
defendant Joseph C. Swetland has neglected hitherto and still
neglects and refuses to pay over or to account to plaintiff
for said balance. Byrom L. Swetland refuses to join as
plaintiff in the prosecution of this action, and for this
reason he is made a co-defendant with the said Joseph C.
Swetland.’ The contract, a copy of which is given in
the petition, was reduced to writing and executed by the
parties. It was attached to the footing of the inventory of
the stock of goods, fixtures, and debts due the firm in the
invoice book, and with that footing is as follows:
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Amount of goods brought over as
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Amount of store fixtures as within
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851 73
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Amount of debts due the firm, less 10 per
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‘
Contract. For value received, we, the subscribers, hereby
sell, assign, transfer, and set over unto Joseph C. Swetland
all our right, title, and interest to the within inventory of
a stock of goods, wares, and merchandise above mentioned,
including all debts, book-accounts, notes, judgments, choses
in action of every name and nature due said firm,
appertaining to or growing out of any dealings of said firm
from the commencement of our said business up to this date;
and we further authorize and empower said Jos. C. Swetland,
his heirs or assigns, to enforce the collection of all claims
due said firm in his or our name, as fully as we could
ourselves, without recourse to us; said amount to be paid by
Joseph C. Swetland to our creditors by way of a compromise,
as he, the said Swetland, may be able to obtain said claims
against us as a firm, the sum to be paid not to exceed the
sum above mentioned, $15,839.74. Balance to be paid to us.
Mount Vernon, Ohio, August 16, 1871. BYROM. L. SWETLAND. E.
DOUGLAS BRYANT. JOS. C. SWETLAND. [Five cent stamp.]’
The
prayer of the petition is for judgment against Joseph C.
Swetland for the alleged balance in his hands, with interest
from January 1, 1872.
The
answer of Joseph C. Swetland contains two defenses. The first
alleges that, under the written contract referred to in the
petition, he became a trustee for the benefit of the
creditors of the firm of Bryant & Swetland; that he
converted the assets transferred to him into money, and
applied the whole proceeds to the payment of the debts of the
firm; and that nothing remained to pay the expenses of
executing the trust, or any compensation for his services in
that behalf. The second defense is as follows: ‘ For a
second defense the defendant says that the writing set out in
the petition purporting to set forth the contract between
Edwin D. Bryant, Byrom L. Swetland, and this defendant does
not state the terms and conditions of the agreement actually
made between said parties. By mutual mistake, oversight, and
omission, in reducing said contract to writing, the real
understanding and agreement of said parties was not expressed
therein. This defendant avers that the real contract made
between said parties, and attempted to be expressed in said
writing, was that this defendant was to take said goods at
the invoice price thereof, less ten per cent.; he was to pay
for the same by paying the debts of said Swetland &
Bryant. This defendant was to have the privilege of
compromising said debts with the creditors of said firm, and
any discounts he might to able to obtain thereon were to
inure to the benefit of this defendant. This defendant says
that said stock of goods were the remnants of four old stocks
of goods, and were not worth to exceed fifty cents on the
dollar of the invoice price thereof; that the only
consideration that induced this defendant to take said goods
at the invoice price thereof, less ten per cent., was the
fact that it was the understanding and agreement that he was
to have the benefit of any discounts obtained on claims
against said firm, and it was understood at the time of
signing said paper as to the amounts of said discounts. By
reason of the mistake aforesaid, said writing is silent as to
who should have the benefit of said discounts. To express the
agreement of the parties thereto, said writing should state
that this defendant was to have the full benefit of all
discounts obtained on claims against said firm. The defendant
says there is manifest error in stating the amount of the
debts due the firm of Swetland & Bryant assigned to this
defendant to be $1,383.74. The invoice thereof shows the said
debts amount to $1,425.69, less 10 per cent., equals
$1,283.74, instead of $1,383.74, as stated in said writing.
This defendant further says that there is ambiguity in said
written contract in the expression therein, ‘ Balance
to be paid to us.’ The other expressions in said
writing do not make it apparent what balance is referred to,
whether the balance between the invoice price of said goods,
less 10 per cent., and the face of the debts of Swetland
& Bryant, paid by this defendant, or the balance between
the invoice price, less 10 per cent., of said goods, and the
amount this defendant paid to settle said debts. This
defendant says that by said expression in said contract,
‘ Balance to be paid to us,’ was meant the
balance, if any, after taking the face of the debts of
Swetland & Bryant adjusted by this defendant from the
invoice price, less 10 per cent. of said goods. The
[defendant] denies that [he] only paid H. B. Clafflin &
Co. $3,778.87 in settlement of their claim against Swetland
& Bryant, but avers, on the contrary, that he paid said
claim in full, $5,038.49. This defendant denies that Swetland
& Bryant only owed J. W. Hartley & Co. $3,250, and
that he only paid $2,650 to settle the same. This defendant
avers that there was due to J. W. Hartley & Co.
$4,086.40, and that he paid the sum of $3,586.40 to settle
the same. The defendant says he has paid and discharged in
full the indebtedness of Swetland & Bryant to the amount
of $15,839.74 and more. An itemized list of said
indebtedness, and the amount paid by this defendant in
satisfaction thereof, is set out in his first answer filed
herein, and having paid all he agreed to pay he denies that
he is indebted to the firm of Swetland & Bryant, or to
this plaintiff, in any sum whatever. The defendant says that
he did not know that said contract did not express the real
contract between the parties thereto, and he only discovered
the same as herein set out a short time prior to filing his
first answer herein. Wherefore defendant prays that on a
final hearing of this case the said written instrument may be
corrected so that the same will express the real agreement
made between this defendant and plaintiff and Byrom L.
Swetland, as set out in this answer- First , by
showing the correct amount with which defendant should be
charged for accounts and turned over to defendant;
second , by making said writing state fully that
this defendant...
