Robertson v. Wright
| Decision Date | 26 June 1867 |
| Citation | 58 Va. 534 |
| Parties | ROBERTSON & als. v. WRIGHT & als. |
| Court | Virginia Supreme Court |
1. An administration account settled in a cause in which the heirs are not parties, is not prima facie evidence as against the heirs.
2. The mere rendering of an account by one party to another, is not sufficient to make it an account stated. For that purpose there must either be an actual statement or adjustment of the account by the parties by going over the items together and striking the balance; or an admission by one party of the correctness of the balance struck by the other, or some other evidence to show that the party who is sought to be charged has, by his language or conduct, admitted the correctness of the account.
3. If an account has been rendered by one party to another, the court cannot presume, in the absence of all evidence on the subject, that the party who received it has acknowledged its receipt and the correctness of the account.
Mary Brown brought a suit in equity against Maurice H. Garland administrator of Archibald Robertson deceased (he being the only defendant), to recover a debt due her from said Robertson as executor of William Brown deceased. Under an order in that cause said Garland settled before a commissioner an account of his transactions as administrator of Robertson, which was reported to the court and confirmed by its decree at April term, 1839. One of the items in the account thus settled and confirmed was a credit in the words and figures following:
" 1835
November 17, By S. & M. H. Garland
balance due from them $1,058.90"
The said S. & M. H. Garland were attorneys at law in Lynchburg the members of the firm being Samuel Garland and Maurice H. Garland.
In September, 1839, Wright and others filed a creditors bill on behalf of themselves and all other creditors of said Archibald Robertson deceased, against M. H. Garland, administrator of said Robertson, and the widow and heirs of said Robertson, praying an account and a marshaling of the real and personal estate. M. H. Garland was ordered to settle an account of his administration; but before the account was settled he died; and in 1841 the suit was revived against Samuel Garland, administrator de bonis non of Archibald Robertson deceased, and executor of Maurice H. Garland deceased. In 1842 the cause came on to be heard in the Circuit superior court of Amherst county, along with the case of Brown v. Robertson's administrator, which had been likewise revived against Samuel Garland, administrator de bonis non of Robertson, and an order was made directing said Garland to settle an account of M. H. Garland's administration of Robertson's estate to the time of his death, which took place in 1840, and also an account of his own administration of the same estate.
Commissioner Brown, in stating the account of M. H. Garland's administration under this order, adopted the account settled in Brown v. Robertson's administrator, as above mentioned, as far as it went. The widow and heirs of Robertson, who appear not to have been represented before the commissioner, filed exceptions to this report, and particularly in reference to the credit of $1,058.90, adopted from the account settled and confirmed in Brown v. Robertson's administrator, and to various items in the account of S. & M. H. Garland with Archibald Robertson, out of which the said balance of $1,058.90 arose. This report was re-committed by consent of parties, without any decision upon the exceptions. In the course of the proceedings, Samuel Garland insisted by his exceptions and by his answer, that the account settled and confirmed in Brown v. Robertson's administrator was conclusive upon the parties in that cause and their privies; that all the creditors of Robertson were such privies; and also that as no specific errors were alleged in the bill, the said account could not be disturbed. Commissioner Brown, in his second report, held these positions of Samuel Garland to be untenable, and proceeded to investigate the account between S. & M. H. Garland and Robertson; Samuel Garland expressing his willingness to correct any errors that might appear in said account. The commissioner reported numerous errors in said account, some being erroneous charges and others being omissions of credits and short credits. This report was also re-committed without a decision upon the exceptions, and the case was referred to Commissioner Tinsley, with instructions to report upon the exceptions and the case generally.
Commissioner Tinsley made a report in 1849, in which he treated the account in Brown v. Robertson's administrator as entitled to the weight of a settled account; that is to say, as prima facie correct, but liable to be impeached by evidence. And he held that this principle applied to the account of S. & M. H. Garland and Archibald Robertson, out of which the balance of $1,058.90 arose. He sustained some of the objections to that account, as to which he thought the evidence sufficient to impeach it, and overruled others as to which he thought the evidence insufficient for that purpose. Among the subjects of exception in the account between S. & M. H. Garland and Robertson, were two charges of $117.95 and $950, the former for the amount of John Major's execution against Robert Tinsley, the latter for cash lent. As to the former the question was whether the Garlands had authority to charge Robertson with the amount of Tinsley's debt to Major; and as to the latter the question was whether the loan had been repaid. The commissioner was of opinion that the former item could not have been allowed without further proof, if it had been objected to in Brown v. Robertson's administrator. As to the latter, he seems to have thought the case doubtful upon the evidence. But he allowed both items, upon the ground that they had been allowed in the account settled in Brown v. Robertson's administrator. These were the only items in the account between S. & M. H. Garland and Robertson which were the subject of controversy in this court.
Samuel Garland excepted to this report as far as it varied the account in Brown v. Robertson's administrator, except where said account might be found erroneous on its face, there being no allegations of surcharge or falsification. He further objected to any change in the account between S. & M. H. Garland and Robertson, upon the further ground that said account had been rendered to said Robertson several years before his death, and had been held by him until his death without objection.
It appeared from the evidence that Samuel Garland addressed a letter to Archibald Robertson, without date, covering a copy of the account between S. & M. H. Garland and said Robertson from February, 1827, to April 1, 1831, which showed a balance due to Robertson on that day of $2,014.07. The charges in this account consisted of lawyers' fees, costs and other expenses, payments to Robertson, and payments of debts of Robertson, and the credits of moneys collected for Robertson. There was a further account between S. & M. H. Garland and Robertson, after April, 1831, extending down to the death of the latter in June, 1835, which showed, besides fees and expenses, charges for large sums paid upon debts of Robertson. After April 1, 1831, there were charges for sums lent to Robertson, but no charges for sums paid to him. From these and other facts in the cause, it seemed that the funds of Robertson in the hands of S. & M. H. Garland were left in their hands by him to be applied by them to the payment of his debts.
The account rendered by S. & M. H....
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