Garnett v. Wills

• Decision Date: 18 September 1902
• Citation: 69 S.W. 695
• Parties: GARNETT et al. v. WILLS et al. [1]
• Court: Kentucky Court of Appeals

69 S.W. 695

GARNETT et al. v. WILLS et al. ^[1]

Court of Appeals of Kentucky.

September 18, 1902

Appeal from circuit court, Harrison county.

"Not to be officially reported."

Action by R. H. Wills and others against the administrator of T. A Garnett, deceased, and others, for a settlement of a partnership. Judgment for plaintiffs, and defendants appeal. Reversed.

Galvin & Galvin and Blanton & Berry, for appellants.

Swinford & Osborne, for appellees.

O'REAR J.

In September, 1889, appellee R. H. Wills and T. A. Garnett deceased, formed a copartnership for the purpose of buying handling, and selling horses. Appellee had had large experience in that business, and was at that time owner of a livery stable. Decedent is not shown to have had any previous experience in the business, and was then engaged in selling groceries and liquors. Decedent continued in the grocery business, giving it his time, for about a year after the partnership was formed. Appellee during that year gave his time to the firm business. Indeed, he says that he did most of the buying and selling for the firm throughout its existence. The operations continued until the summer of 1893. The firm then quit business, except that it held some of its horses for a year or two till sold. Appellee had charge of them, so he says, and sold the last of them in 1895. The volume of the business done by the firm was over $60,000.

From 1893 till his death, in 1896, decedent lived in Cynthiana Ky. also appellee's home. It is claimed that they made some effort to settle the partnership accounts, but failed. After the death of Garnett, appellee brought this suit for a settlement of the partnership, claiming that it had lost money, and that he had advanced it large sums in excess of that advanced by the decedent. The cause was referred to the master commissioner, over the objections of Garnett's administrator, who denied each and all of appellee's claims, and, in addition, claimed that a settlement had been made by the partners in the lifetime of Garnett. The commissioner was directed to ascertain and report the partnership terms, assets, and liabilities, including liabilities to the partners.

A great volume of proof has been taken, all by the appellee. From that the commissioner reported a balance owing to appellee, and the court adjudged him $3,558.59 against the estate of Garnett. We have examined this record with care, in the endeavor and the hope that we could arrive at a satisfactory conclusion concerning the rights of the respective parties.

The books kept by this firm are practically useless as aids in getting at the true state of the accounts. Appellee charges that they are incomplete and inaccurate. They are certainly incomplete. As far as they go, they are not shown to be particularly inaccurate. They were kept in the main by the decedent. Appellee, however, had access to them, personally directed many entries upon them, and had the privilege and right to direct any others that he thought proper. Most, or nearly all, of the firm's important transactions having been by him, the duty of reporting them, and seeing that proper entry was made of them on the firm books, was his. For this lack of accurate and necessary data--the lack of books of account--we conclude that each of the parties was equally culpable.

Appellee himself testified at length and in detail concerning all the items of his account brought in against the firm. All this testimony was incompetent. Section 606, Civ. Code Prac. The matters involved were transactions with, statements of, or acts done or omitted to be done by, one who was dead when the evidence was offered, and the witness was testifying for himself. True, many of the items of appellee's account were proven sufficiently by competent witnesses. On the other hand, many were not. It would not be valuable for us to take up in detail the innumerable items in issue. We can illustrate by a few examples a sufficient number of incidents to point the governing principles of law. Many of the items charged by appellee were for feed bought for the firm, and paid for by him out of his individual means, generally by his personal check. Witness being asked if he had furnished the firm of Wills & Garnett any feed, answered, "Yes, corn or hay." Asked who paid for it, would say sometimes Mr Garnett, and sometimes Mr. Wills. He would be asked to identify, and generally would identify, the check given and claimed as a credit by Wills. This would be allowed. But nothing more was said about the payments made by Garnett, and no allowance made therefor. This occurred more than once. It was shown in some instances that the witness delivered the feed to Wills & Garnett's stables, where the members of the firm had also individual horses, and not in equal numbers. Nothing being shown to the contrary, it would naturally appear that some of this partnership feed was used for the individual stock. No account is made of that. Wills, in at least one material instance, had there five or six horses more than Garnett had. For how long was not shown. In other instances laborers were introduced, who testified that Wills paid them the items charged by him. They also testified that for much of the time Garnett paid them. No credit was given to Garnett, nor was it shown how much he paid, nor is it shown that this information can now be had. Credit was given to Wills. Wills charged himself with...