Clarke v. Clarke

• Decision Date: 12 June 1919
• Citation: 99 S.E. 664
• Court: Virginia Supreme Court
• Parties: CLARKE v. CLARKE et al.

99 S.E. 664

CLARKE

v.CLARKE et al.

Supreme Court of Appeals of Virginia.

June 12, 1919.

Appeal from Circuit Court, Culpeper County.

Suit in equity by John H. Clarke against R. Taylor Clarke and others to enjoin the prosecution of actions at law. Injunction ordered, and cause referred to a commissioner to settle accounts, and exceptions by complainant, and, after his death, by Gertrude Clarke, his administratrix, to commissioner's report, sustained, and cause recommitted to commissioner, and decree for defendants, and complainant appeals. Affirmed.

Hiden & Bickers, of Culpeper, for appellant.

Grimsley & Miller and E. E. Johnson, all of Culpeper, for appellees.

PRENTIS, J. John H. Clarke instituted his suit in equity to enjoin the prosecution of two actions at law against him, one brought by the Clarke Hardware Company for the benefit of R. Taylor Clarke, its as signee, and the other by W. D. Clarke & Bro. The allegations of the bill are indefinite, but, among other things, it avers that John H. Clarke and his brother, R. Taylor Clarke, were partners engaged in the manufacture-and sale of brick under the name and style of Culpeper Brick Company; that on September 1, 1912, R. Taylor Clarke retired from the partnership, and John H. Clarke assumed the debts and took the assets of the firm. There was a written contract, which has been lost. John H. Clarke having failed to pay these debts, the actions at law above referred to were instituted. The bill also alleges that John H. Clarke was more particularly engaged in looking after the actual management of the concern, while R. Taylor Clarke "handled almost exclusively the financial management of the business"; that he, the complainant, believed that appellee was indebted to the Culpeper Brick Company in a large sum, but that the books, papers, and vouchers had been so carelessly and negligently kept by the appellee that it was impossible for him (John H. Clarke) to ascertain the amount of debts due by R. Taylor Clarke and W. D. Clarke & Bro. to the Culpeper Brick Company. The injunction was awarded, and the cause referred to a commissioner to settle the accounts. The commissioner reported the sums withdrawn by the two partners, and it appeared that John H. Clarke had withdrawn more than R. Taylor Clarke, but that he was unable, because of the condition of the books, to ascertain the state of the accounts between the parties.

This report was excepted to by John H. Clarke, and after his death by his administratrix. The exceptions were sustained, and the cause recommitted to the commissioner "to allow the complainant further time to produce evidence before the said commissioner to sustain the matters claimed by her in this said cause, and to restate and reform the said report in accordance with whatever evidence, if any, that may be produced before him by the next term of court." The commissioner again reported his inability to ascertain from the books or otherwise the true state of the account between the parties. He reported, however, that the amount due by the Culpeper Brick Company to the Clarke Hardware Company was as claimed in the action at law, and that the debt claimed by W. D. Clarke & Bro. was entitled to a certain credit.

This result is, of course, not surprising, because John H. Clarke lived from September 1, 1912, the date on which the partnership was dissolved, until a date between April 24, 1916, and December 19, 1916, and he, during that period of 3 1/2 years, according to the record, was never able to indicate with any certainty anything except his be-lief that R. Taylor Clarke owed the Culpeper Brick Company some indefinite amount of money. All the books, papers, and available evidence were indicated to the learned counsel who represented him, and he, as he testifies, was never able to ascertain from the books and papers or otherwise just...