Ligare v. Peacock

• Decision Date: 23 January 1884
• Parties: GEORGE LIGAREv.JOSEPH PEACOCK.
• Court: Illinois Supreme Court

109 Ill. 94

1884 WL 9776 (Ill.)

GEORGE LIGARE

v.JOSEPH PEACOCK.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.

Mr. C. C. BONNEY, Mr. S. M. MOORE, and Mr. LYMAN M. PAINE, for the appellant.

Messrs. J. P. & T. R. WILSON, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill filed by appellant for an account of partnership matters between him and appellee. An answer was filed by appellee, and he also filed a cross-bill, to which appellant filed an answer. The court below referred the case to the master to hear evidence and state an account between the parties, and report his findings to the court. After a hearing, the master reported an account, with the evidence, and his report was approved, and a final decree was rendered against complainant for $21,280.61, and the case was removed to the Appellate Court, where the decree was affirmed, and he brings the record to this court, and urges a reversal.

This record contains a large amount of irrelevant matter, and evidence relating to the previous pursuits of the parties, and a considerable portion appears to have been duplicated in the record, and the record is greatly incumbered, and imposes a great amount of unnecessary labor to separate the important from the immaterial matter in the abstract and record. In such a case as this the first question to be determined is, whether the parties are in equity required to account, and being so found, the case should be referred to a master to hear the evidence and state an account. Until it comes before the master there is no necessity to take evidence as to the state of the accounts. If previously taken, it unnecessarily incumbers the record. It is true appellee denies the partnership was formed in April, 1853, but appellant, who testifies it was, is strongly corroborated by other witnesses, and appellee testifies so recklessly, and with such manifest feeling, that it detracts greatly from the weight of his evidence. He testifies that when appellant took charge of the mills he was to receive only such compensation as appellee saw proper to give him. In another part of his evidence he says appellant was to take charge of and operate the mill for his board, until the partnership should be formed. He states that he released the mortgage on the forty acres of land because appellant's wife cried, and besought him to do so. Now, these statements are too incredible for ready belief. He swears to facts as true, of which he could not possibly have had any personal knowledge. He manifests great bitterness and hatred of appellant. On the other hand, appellant testifies with apparent candor, and is corroborated in much of his evidence by other witnesses. On reviewing the whole of the evidence on this question, we are of opinion it proves that the partnership commenced in April, 1853. We therefore must hold that the statement of the account must commence at that time, and extend down to the time the partners refused to proceed further and do anything more under the partnership agreement.

Then, what were the terms of the contract of partnership? It not having been reduced to writing, they must be gathered from the statements of the parties, and the circumstances attending the transactions had under it. Appellant testifies that the partnership was to be equal, and he is corroborated by the agreement by appellee, in February, 1854, to convey to appellant one-half of the property, which he subsequently did; but where a partnership is proved to exist, in the absence of proof to rebut it the presumption is that it is an equal partnership. Had appellant's interest been less than one-half, the property would surely have been conveyed in proportion to that interest. Appellant testifies that he was to take charge of the mills, manufacture lumber, and ship it to appellee at Chicago, and he was to sell it, and they were to share the profits equally. This appellee denies, and insists that he was to purchase it from the firm at the current wholesale prices of such lumber in that market at the time it was received. If this was the contract, why did appellee consult, by letter, with appellant as to the location and other particulars in reference to his opening a lumber yard in Chicago? Why write appellant threatening to close the yard if the mill could not furnish more lumber? If appellant was not a partner in that yard, what interest was it to him whether appellee had a lumber yard, or where it was located, or whether, when appellee had opened it, it should be closed or remain open? If the agreement was as claimed by appellee, it was not of the slightest concern to appellant whether there was a lumber yard in which it should be placed for sale. Nor can we believe any intelligent business man would have so written appellant if he had no interest in the yard. We are therefore of opinion that appellant was a full partner in the business at Chicago, and after paying the firm debts, and deducting all expenses of the business in the yard, is entitled to one-half of the profits.

But it is said that appellee rendered annual accounts, in which he credited the firm with the lumber he received at the wholesale price, and appellant never objected to the accounts. It is insisted this is strong evidence that the agreement was as appellee states it. If there was a full partnership in the business at Chicago, as we think there was, it was not of the slightest importance at what price the mill was credited, or whether at any price, as it was only intended as a memorandum to show what amount of lumber had been received by appellee for which he should account on a final settlement, with the profits made on its sale. This being the purpose, it did not matter to appellant what, if any, price was fixed on the lumber. He was only concerned to know that the proper amount was credited, and this being so, he was not required to object. In fact there was nothing to which he should object.

Appellant is entitled, in stating an account, to a credit of $2500,--the amount of the receipt given by appellee. It is true that the sale of...