Hinkson v. Ervin

• Decision Date: 15 December 1894
• Citation: 40 W.Va. 111,20 S.E. 849
• Parties: HINKSON. v. ERVIN.
• Court: West Virginia Supreme Court

20 S.E. 849

40 W.Va. 111

HINKSON.

v.ERVIN.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1894.

Evidence or Partnership—Accounting—Deposition.

1. Stronger evidence of the existence of a partnership is required between partners than by third persons.

2. Under a bill for settlement of partnership account, the burden of proof is on plaintiff; and if he cannot furnish sufficient to establish a partnership, and also to enable the commissioner to state a partnership account, his suit necessarily fails.

3. A court will not undertake to adjust the rights of parties Without satisfactory means of ascertaining what their rights are, and when an account cannot be safely stated, and the true balance between the parties ascertained.

4. A deposition of a party read on the hearing in the circuit court cannot be ignored or suppressed from the hearing of an appeal in this court, on the ground that since the decision in the circuit court the adverse party has died.

(Syllabus by the Court.)

Appeal from circuit court Brooke county.

Bill by W. T. Hinkson against John Ervin. Prom a decree dismissing the bill, plaintiff appeals. Affirmed.

J. B. Sommerville and J. C. Palmer, Jr., for appellant.

W. P. Hubbard and H. C. Hervey, for appellee.

BRANNON, P. This was a suit in equity in the circuit court of Brooke county by W. T. Hinkson against John Ervin to settle a partnership for dealing in grain, live stock, and other farm products, Hinkson claiming a liability in his favor against Ervin. The circuit court entered a decree that the equities were with the defendant, and dismissing the bill, and Hinkson appeals. Ervin flatly denies the existence of a partnership, and this issue meets us at the front door of the case. The burden is on him asserting thepartnership to prove it, and to prove a partnership the evidence must be stronger between partners than when third persons assert it. Robinson v. Green, 5 Har. (Del.) 115. There are some circumstances indicating a partnership, but they indicate only; they do not prove it. If taken alone, they would be inconclusive, and leave the question in such obscurity that I doubt whether a court could find a partnership upon them; but there are numerous circumstances of a more conclusive nature going to repel any claim of the existence of a partnership. The record from which the facts are to be gleaned Is voluminous and complicated, and the evidence long and circumstances numberless. It would be simply worse than useless to detail the evidence of facts here, since the question whether there was a partnership is purely one of fact, and the evidence and facts bearing on its solution would be applicable only in this case, and be no precedent for other cases. In opinions for publication in the Reports, details of evidence and facts, except so far as is necessary to render intelligible points of law adjudicated, are out of place. If we give facts on one side, we should give those on the other, and the Reports are cumbered with page after page of mere circumstances and facts which, after all, can perform no legal function. Opinions should give points of law and legal principles adjudicated, not endless details of evidence, or even facts.

We think the evidence, as a whole, does not establish the partnership. Common rules of evidence require one seeking to recover of another to establish the elements essential to his recovery by full proof. Starkie, Ev. Moreover, even if we could say that a partnership did exist, the plaintiff would encounter another insurmountable obstacle. A perusal of the large record will show that the means to accomplish a statement are utterly inadequate. No books of three years of quite an extensive business, covering many thousands of dollars, were kept. Little memorandum books are somewhat mutilated; some papers lost; papers claimed to bear upon the matters uncertain and incomplete. A court, to accomplish a settlement, would have to wend its way through a maze of circumstances and papers so complicated, so inconclusive and uncertain, as instruments of evidence, that any conclusion as to amount or process of adjustment would be veiled in uncertainty, leaving the mind uncertain that it was attaining justice. If there was a partnership, the case is a remarkable one for its absence of books and papers and other means of adjustment A court must have some safe data to guide its steps. If through negligence, bad business conduct, loss of papers, or other cause, such data are wanting, a court simply cannot act if, as I think Is the case, the business done which is claimed to have been partnership was the sole business of Hinkson, or his wife by him as agent, we can account somewhat for absence of books and memorials of the transactions; but it is incomprehensible that a partnership so important could have existed without papers, books, inventories, and other means of tracing its progress, ascertaining its loss or gain, or stating an account of it; and this is a powerful circumstance to repel the idea of a partnership. To make a partnership account, there must first be a general account of the partnership dealings to ascertain the profit or loss, and then separate accounts between the partners and firm. The individual account is impossible until the general account is made, as we cannot tell whether a profit or loss is to be shared until we know whether there is a profit or loss. The commissioner's report in this case, finding a balance against Ervin, ignored this principle in stating no general account, to say nothing of other defects; and, in fact, this is not surprising, as I do not see how either this general account or one between the partners could be made upon any basis better than guesswork. The commissioner says the means before him were insufficient to make a statement satisfactory to himself. He says the evidence as to terms of partnership and as to profits and losses is exceedingly meager and unsatisfactory. Certain legal principles here apply. Under a bill for partnership accounts, the burden of proof is on the complainant, and, if he cannot furnish sufficient evidence to enable a master to state a partnership account, his suit necessarily fails. Maupin v. Daniel, 3 Coop. 223. "Where there are issues as to the existence of a...