Harribee v. Wachter

• Decision Date: 30 September 1874
• Citation: 74 Ill. 173,1874 WL 9101
• Parties: HARRIET ALBEE, Adm'x, etc.v.WILLIAM H. WACHTER.
• Court: Illinois Supreme Court

74 Ill. 173

1874 WL 9101 (Ill.)

HARRIET ALBEE, Adm'x, etc.

v.WILLIAM H. WACHTER.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

This was a bill in chancery, exhibited by William H. Wachter against Cyrus P. Albee, in his lifetime, to settle a partnership and state an account between the parties. Before the decree the defendant died, and Harriet Albee, his administratrix, was made defendant in his place. From the final decree in the case the administratrix appealed.

Messrs. GARDNER & SCHUYLER, for the appellant.

Mr. E. A. STORRS, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This bill was to settle a copartnership. It was filed in 1869. Before the death of Cyrus P. Albee, which occurred on the 25th day of March, 1871, the issues had been made upon the original bill, and answer, and the testimony on the part of the complainant, Wachter, including his own deposition, had been taken. The books of the firm were then under the control of the defendant, Albee, and although the testimony taken tended to show a considerable indebtedness from him to Wachter, he made no effort to explain it by his own testimony, or otherwise. The record, testimony, books, and all the files, were destroyed by fire in October, 1871.

Afterward, upon leave given, the record and pleadings were restored and the cause revived, and the administratrix made a party. The testimony, on the part of complainant, was retaken, but none was offered by appellant. On the final hearing of the cause, the court found, among other things, the net profits of the copartnership from the commencement to the dissolution, amounted to the sum of $5,856.47; that complainant was entitled to one-half that sum, and decreed accordingly.

The principal error assigned is, the evidence is not sufficient to support the finding of the court. We have examined the evidence preserved in the record, and if we exclude appellee's own testimony, which it is insisted was improperly received, we are still of opinion there is sufficient to sustain the decree of the court.

The witness Russell states he made a thorough examination of the firm books in the lifetime of Albee, and reported to him they showed the net profits of the concern to be $5,856.47. It is true, Albee, in a general way, said that amount was not correct, but how and in what way he did not undertake to explain. It seems very...