Holt v. Howard

Citation77 Vt. 49,58 A. 797
CourtUnited States State Supreme Court of Vermont
Decision Date31 August 1904
PartiesHOLT v. HOWARD.

Exceptions from Windsor County Court; Rowell, Judge.

Action by Francis F. Holt against Austin Howard. A pro forma judgment was rendered in favor of plaintiff on a referee's report, and defendant brings exceptions. Affirmed.

Argued before TYLER, MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

Pingree & Pingree, for plaintiff.

T. F. Strange, and J. D. Denison, for defendant.

HASELTON, J. This was ah action of general assumpsit. The case was referred, and was heard by the referee, under an agreement to the effect that any and all pleadings which either party might desire to have treated as filed should be so treated. The plaintiff was for a great many years a country merchant. For some years prior to 1887 he had a partner in the mercantile business, but after that date he carried on such business alone. Aside from his mercantile business, the plaintiff engaged in the lumber business; a business in which the defendant was for a long time engaged. The plaintiff and defendant dealt extensively with each other, and at times were jointly interested in lumber transactions. The plaintiff kept books covering a part of his business with the defendant for the whole time of its continuance, and the defendant kept books covering a part of such time. Both parties testified, and used, as well they might, books, diaries, scraps of paper, checks, check stubs, and various memoranda to refresh their recollection. It appeared that many of their dealings were adjusted at or about the time of the dealings themselves, and that so no entry of them was made in any book of account. The referee found, and the parties conceded, that in consequence of the way in which their accounts had been kept, the extent of their dealings, the time covered thereby, and the indistinct recollection of the parties, a condition of uncertainty existed. Prior to December 1, 1887, and after the dissolution of the partnership referred to, the parties to this suit spent several days in looking over their dealings with a view to a settlement; and on December 1st they agreed that, leaving certain items for future investigation and adjustment, there was then due the plaintiff the sum of $2,158.32. The defendant discusses this adjustment and its effect at considerable length, but we think there can be no question that in the agreed state of the evidence the referee was warranted in taking, as he did, what the parties had settled upon, so far as their adjustment went, as a basis from which to work. It is true that the dealings of the former partnership with the defendant entered into the partial settlement of December 1, 1887; but that fact presents no difficulty, as it is found that at that time Holt, having previously bought out his former partner, was the sole owner of the partnership account against the defendant, and that the adjustment was had with knowledge of such ownership on the part of the defendant, and that the partnership account was always treated by both the plaintiff and the defendant as a matter of deal solely between them. In these circumstances there was no obstacle to the adjustment of the partnership account between the plaintiff and the defendant. The principle that if a suit is brought on an assigned claim, not a negotiable instrument, the suit must be in the name of the assignor, has no application here.

One of the important findings of the referee is thus stated: "I find that each of the parties intended their dealings, aside from notes, should be a mutual open account, and the payments and charges of each should apply on the payments and charges of the other." The defendant excepted to the report on the ground that he did not get the benefit of the statute of limitations with respect to various items which are of such a character that, without this finding,...

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