Richards v. Burden

• Decision Date: 21 April 1880
• Parties: RICHARDS v. BURDEN ET. AL
• Court: Iowa Supreme Court

7 N.W. 17

59 Iowa 723

RICHARDS v. BURDEN ET. AL

Supreme Court of Iowa, Dubuque

April 21, 1880

Appeal from Dubuque District Court.

THIS action was commenced on the 18th day of September, 1869, for the dissolution of the partnership existing between the plaintiff and the defendant, George Burden, the distribution of the partnership assets, the appointment of a receiver, and an injunction to prevent the defendants, Eliza A. Burden, and Richard Babbage, from disposing of certain firm property placed in their possession by the defendant, George Burden. The defendant, Eliza A. Burden, filed an answer and cross bill, asking that her account for a large amount of money advanced to the firm of Richards & Burden be stated and allowed. The defendants, George and Eliza A. Burden, also filed a cross-bill asking the enforcement of a certain contract entered into, as alleged, between the plaintiff and the defendants, George and Eliza A. Burden, for the conveyance of certain lands in Mitchell and Chickasaw counties. On the 18th day of September, 1869, John Hodgdon was appointed receiver of the effects of the partnership, and an injunction was granted as prayed. On the 27th of November 1869, by consent of parties, the cause was referred to D. C Cram, Esq., to take proofs and report on the issues and state an account. On the 12th day of July, 1876, the referee filed his report, containing a very full and exhaustive presentation of the facts, and embracing seventy distinct findings. The plaintiff and each of the defendants, George and Eliza A. Burden, excepted to certain portions of the report. At the November term, 1877, of the District Court, an interlocutory decree was entered sustaining, in part, the exceptions of each of the parties. The cause was again referred to the same referee for supplemental report upon certain matters indicated in the interlocutory decree. On the 6th day of March, 1878, the referee filed his supplemental report, upon which, on the 20th day of July, 1878, the District Court entered final decree. This decree renders judgment in favor of Eliza A. Burden against the firm of Richards & Burden for $ 6,276.41. It is further adjudged that the balance due plaintiff from the firm of Richards & Burden January 1, 1878, was $ 26,778.20. It is further adjudged that the firm of Richards & Burden recover from the defendant George Burden, the sum of $ 20,939.07. It is further ordered that the firm of Richards & Burden be dissolved. No relief was granted against the defendant, Richard Babbage. The plaintiff and each of the defendants, George and Eliza A. Burden, appeal. The facts necessary to an understanding of the various points ruled are stated in connection with the discussion of the points respectively.

MODIFIED AND AFFIRMED.

Griffith & Knight, for the plaintiff.

George Crane and Robinson & Lacy, for the defendants.

DAY, J., SEEVERS, CH. J. Adams, J., took no part in the determination of this case. BECK, J., Dissenting.

OPINION

DAY, J.

This action was commenced on the 18th day of September, 1869. For nearly nine years it was pending in the court below. On the 29th day of July, 1878, final decree was entered in the court below, which was satisfactory to neither party. On the 20th day of September, 1878, the defendants perfected their appeal. On the 11th day of October, 1878, the plaintiff perfected an appeal. The cause involved the partnership business of the plaintiff and the defendant, George Burden, for a period of about fifteen years, and questions of a collateral nature connected with the partnership. The parties differ, almost toto coelo, and the controversy has engendered a bitterness of feeling greatly to be deplored. In view of the many points in controversy, the great mass of the testimony, its unusually conflicting character, and the pertinacity with which the views of the respective parties are urged, it is scarcely to be hoped that we will be able to make a disposition of the case more satisfactory to the parties than that made by the referee and the court below. Where questions of fact are to be determined upon conflicting evidence, it rarely happens that a conclusion can be reached which will meet with universal approval from parties indifferent as to the result, much less from parties deeply interested upon opposite sides. Oftentimes the tribunal which has to determine can only say that the conclusion adopted is more probably correct than its opposite, and is forced to admit that against the view reached objections may be urged which it is not possible to answer. We freely admit that we have found ourselves in this condition as to some of the questions of fact involved in this case. And yet, if no conclusion may be reached and acted upon, against which an unanswerable objection exists, individuals and courts must leave many of the most important business controversies undetermined. It is a matter of universal experience that opposite views may be maintained by unanswerable arguments. In such cases the only reasonable course is to adopt the more probable views.

In our consideration of the various questions at issue between the parties, it will not be practicable, and if practicable, it would not be profitable, to discuss all the testimony directly or remotely bearing upon them. We shall attempt no more than an allusion to the prominent features of the testimony which control our judgment. Where the evidence comes in direct conflict, and we are unable to determine a preponderance either way, we shall adopt the conclusion which in view of the whole case seems to us the more reasonable. When this test is wanting, and the evidence seems to be in equilibrio, we shall decide adversely to the party on whom rests the burden of proof. We now proceed to a consideration of the various questions in controversy between the parties, in an order somewhat different from that pursued by counsel.

I. As to the claim of Mrs. Burden being usurious.

During the years 1854 and 1855. Mrs. Burden, then Mrs. Holmes placed in the hands of the plaintiff as a member of the firms to which he belonged, as shown by the evidence and found by the referee, $ 10,224.72. An important question of difference between the parties is as to the contract under which the money was received. The plaintiff insists that the money was received as a loan, under an usurious agreement for the payment of twenty per cent per annum interest. Mrs. Burden insists that the money was furnished to the firms as her agent to be employed by them in time entries, they to account for one-half of the profits, and to have the other half as compensation for their services. The referee and the court below sustained the view of the defendant, Mrs. Burden, as to this question, and held that the agreement was not usurious. On the 30th day of May, 1856, the plaintiff rendered to Mrs. Eliza A. Holmes, now Mrs. Burden. a statement of account. Appended to this account he wrote as follows: "Eliza A. Holmes has paid to me the above amounts in all, and she should receive them and twenty per cent., in all from T. R. & D. and T. R. & B., from date of being received to this date, less her debit account and one-half house expenses." The plaintiff places great reliance upon this memorandum as sustaining his view of the case. In our opinion it is equally consistent with the view of the defendant, Mrs. Burden. The evidence shows that in the time entry business forty per cent was exacted of the party for whom the entry was made. If he paid for the entry, forty per cent profit was realized upon the investment. At the time this memorandum was made it was supposed by the parties that, if the entry was forfeited and the firm had to keep the land, the land was worth as much as the original investment and forty per cent thereon. So that, in either event, the firm supposed that investments made were yielding a profit of forty per cent. It is therefore perfectly consistent with the claim of Mrs. Burden that the plaintiff should say, when rendering his account, that Mrs. Holmes should receive the various sums advanced, and twenty per cent from date of being received. On the 4th of July, 1856, the plaintiff rendered another account in which the sums due are designated as principal and interest. The fact that the plaintiff, in estimating the amount due Mrs. Burden, designated the amount above the principle sum received as interest, is a circumstance entitled to only slight consideration, in view of the other testimony in the case. The plaintiff's understanding of the manner in which this money was to be employed is derived from a letter which he wrote to the defendant, Mrs. Burden, on the 25th day of April, 1854, just after he had received the second installment of money. In this letter he says: "I have invested all your funds, $ 2,000, at twenty per cent, without any charge for gold or drafts. I took the deeds in my name for convenience, and have executed a deed to you, so that the title is in you if I should be taken away. I will send you a description of the lands by and by when I have more time. The reason of my doing this is, that while you are just as safe, it saves you a great deal of trouble in constantly making deeds in Rockford, and sending to settlers here when they pay up. You understand that you have now $ 3,000 invested in improved lands in Iowa at $ 1.05 per acre, most, indeed I believe all, being for one year from the time the investment was made. All this draws twenty per cent. So that your income from this source is $ 600 per year, and, as soon as the money begins to be paid in, you can invest at the same rate, both principal and interest. I have no doubt but that you can do this, or I can for you, for five years yet at least. If we are economical, in that time you can double...