Jacksonville, M. & P. Ry. & Nav. Co. v. Warriner

• Citation: 16 So. 898,35 Fla. 197
• Parties: JACKSONVILLE, M. & P. RY. & NAV. CO. v. WARRINER.
• Decision Date: 05 March 1895
• Court: Florida Supreme Court

16 So. 898

35 Fla. 197

JACKSONVILLE, M. & P. RY. & NAV. CO. v. WARRINER.

Florida Supreme Court

March 5, 1895

Appeal from circuit court, Duval county; James M. Baker, Judge.

Action by Charles F. Warriner, surviving partner, against the Jacksonville, Mayport & Pablo Railway & Navigation Company, a corporation. Judgment for plaintiff, and defendant appeals.

Syllabus by the Court

SYLLABUS

1. Original accounts rendered by plaintiff to the board of trustees of the defendant corporation at a regular meeting and of which a copy was given to each director, and which were carefully examined by the directors, and no objection made, and which accounts were accepted and approved by the board of directors, are relevant and proper evidence in a declaration containing a count upon an account stated. An objection that such evidence was 'improper, in that the minutes of the company is the best evidence, and that it is not shown that the plaintiff performed any service for the company,' was not well taken, and was properly overruled.

2. It is not necessary, in proving an account stated, the gist of which consists in the agreement to or acquiescence in the correctness of the account by the other party, to first show the books of original entry from which the account agreed upon by the parties was made up.

3. The agreement upon which suit was brought, as appears upon the minute books of the defendant corporation, was as follows 'Be and it is hereby resolved that Charles F. Warriner and A. L. Hungerford, partners, doing business as aforesaid shall be paid the sum of one thousand dollars annually, for the term of three years from this date, for such services as shall be rendered by them severally as secretary and treasurer of said company, and jointly in keeping the books and accounts thereof; said salary to be paid monthly.' Held, that this contract is one which a partnership might lawfully enter into, and which, being partially completed upon the death of one partner, might be lawfully performed by the other as surviving partner.

4. As a general rule, where a partnership has entered into an executory contract, and one of the partners dies after it has been partially performed, his death does not absolve either party from performance, in the absence of an express stipulation to that effect; and the existence of the partnership, with its active functions to be exercised by the surviving partner, is continued until the contract has been fully performed.

5. After making the contract set out in the third headnote above, one of the partners died, and after his death the directors of the defendant corporation agreed to pay the other partner the salary in question for a continuance of the services for which the firm had been employed. Held, that this agreement is referable to the original contract, and, in the absence of any proof to the contrary, must be presumed to have been made with the plaintiff as surviving partner.

6. Where the court refuses, upon request, to give the jury an instruction which embodies a correct and appropriate proposition of law, but it clearly appears from the undisputed facts of the case that the verdict was amply sustained by the evidence, and, if the instruction had been given, it could not possibly have affected the verdict, the error will be held immaterial, and the judgment will not be reversed on that account.

COUNSEL H. H. Buckman, for appellant.

A. W Cockrell & Son, for appellee.

OPINION

LIDDON J.

The appellee sued the appellant upon a declaration containing various common counts, and obtained judgment. The plea was 'Never was indebted.' The appellant assigns various errors. The first four assignments of error, which are argued together, all relate to rulings of the court admitting evidence by the plaintiff as a witness in his own behalf. The portion of the testimony first objected to is that in which the plaintiff's attorney handed him a statement of account, being a portion of the bill of particulars, or rather one of the bills of particulars, sued upon, and about which the plaintiff testified as follows: 'These are the original accounts I rendered to the board of directors of the defendant at the regular meeting. I gave each director a copy of these accounts, and they carefully examined them, and no objection was made. The board of directors accepted this account, and approved it, as appears by their minutes of that date.' The objection made to this evidence was that it was 'improper, in that the minutes of the company is the best evidence, and that it is not shown that the plaintiff performed any service for the company.' We do not think the objection well taken. The account, in connection with the evidence offered, was certainly relevant to the count in the declaration upon an account stated. Langdon v. Roane, 6 Ala. 518; 2 Rice, Ev. p. 836. The latter portion of the testimony of the complainant, that the acceptance and approval of his account appeared 'by their minutes of that date,' is perhaps technically erroneous. But that portion might be stricken out without materially affecting the other portion, which tended to show a rendering of his account by the plaintiff to the highest authority of the defendant corporation, and its acquiescence therein. We cannot, in view of the facts in this case, as there was no evidence whatever to contradict the testimony of the plaintiff, hold that such an immaterial error should cause a reversal of the judgment of the circuit court. Then it seems (the record not being very clear upon the subject) that the plaintiff offered in evidence the same minutes of the board of directors of the defendant, to the absence of which the defendant's counsel had just objected. The extract from the directors' minutes offered does not show in precise terms an approval of the account sued upon. It shows that the secretary and treasurer (said offices being filled by the firm of which the plaintiff was surviving partner) 'presented their annual report, showing the condition and affairs of said company, which was read and received, and, on motion, ordered filed.' In connection with this extract was offered again the same account which had been rendered by the plaintiff to the defendant's directory; also verbal testimony to the effect that the plaintiff's firm handled and sold the lands, and kept the books and accounts, of the defendant, and did the work and expended the money for the defendant, as indicated in said statement of account, and that said account was just and true. This evidence was objected to, upon the ground 'that the same was irrelevant and improper; that no books of original entry were introduced to prove said account, the account being made up of divers matters; and that no proper services of proof of them have been shown, or proof of the value of them.' We are unable to see any force in this objection. It is not necessary in proving an account stated, the gist of which consists in the agreement to or acquiescence in the correctness of the account by the other party, to first show the books of original entry from which the account agreed upon by the parties was made up. The very object in rendering, stating, and settling accounts is to avoid the necessity of making such proof.

The third assignment of error is based upon five pages of testimony of plaintiff in proving his account sued upon. The objections upon which it was based...