Shipman v. Fletcher

• Decision Date: 13 May 1887
• Citation: 2 S.E. 198,83 Va. 349
• Parties: Shipman v. Fletcher.
• Court: Virginia Supreme Court

2 S.E. 198

(83 Va. 349)

Shipman

v.Fletcher.

Supreme Court of Appeals of Virginia.

May 13, 1887.

1. Reference—Further Account.

A decree based on the award of arbitrators to take account of partnership transactions, was on appeal reversed, and a new account ordered. A special commissioner made another award dealing with subsequent partnership transactions between the same parties, but refused to admit items included in the former award. A final decree was entered on this second award. On appeal, held error, and that a new account must be taken of the later transactions, and adjusted to that previously ordered by the supreme court.

2. Same—Referee's Fees—Exception.

An exception to the amount of a commissioner's fees must be taken in the trial court, and in the absence of such an exception, and on the filing of the proper affidavit by the commissioner, that court did not err in allowing his fees.

Appeal from circuit court, city of Alexandria.

W. Willoughby and John W. Daniel, for appellant.

Chas. E. Stuart and Ro. Christy, for appellee.

Fauntleroy, J. This is an appeal from a decree of the circuit court of the city of Alexandria in a chancery cause in said court pending, in which John J. Shipman is complainant, and William Fletcher is defendant, pronounced twenty-fifth day of May, 1885. This is a branch of the case of Ship-man v. Fletcher, recently decided by this court on an appeal from a decree of the circuit court of the city of Alexandria, rendered at its May term, 1884, in a suit between the same parties for the settlement of accounts between them as partners in the matters of several contracts for public works performed by them for the District of Columbia, one of which said contracts was known as the "Canal-Road Contract, " and was numbered 561, and involved extensive and varied and complicated accounts to nearly the amount of $250,000. Another contract was for work performed by these same parties, as partners, in excavating a cellar for the Corcoran building in Washington; and the contract which is the subject of the decree complained of in this branch appeal was known and executed by these same partners as "James-Creek Canal Work;" and was enlarged so as to include the paving of a part of First street, involving, the two together, about the sum of $30,000. These contracts were in the name of Shipman; Fletcher being surety upon his bond, and agreeing to furnish the money to carry on the work; and the case also shows that for some years, during the time of the performance of these contracts, the said parties had dealings with one Peter Campbell, a broker in Washington, frequently making him a depositary, and obtaining money from him by discounting notes, etc.

During the time of the performance of canal-road contract numbered 561, Shipman and Fletcher had furnished stone to one Gilbert, on account of which Fletcher made large collections, and the bill filed prayed for a settlement of all these aforesaid contracts and partnership matters between the said Ship-man and Fletcher. In the progress of the cause there was a submission by the parties, and a reference to arbitrators, who made an award which was approved and confirmed by the court in its decree of September 23, 1884, thecause having been argued and submitted at the May term, 1884, as follows: "The court ascertains said award to be final and binding as between the parties thereto, and a final settlement of the matters in controversy in contract No. 561 between the plaintiff and defendant, and of all matters in controversy between the plaintiff and defendant, except those arising under the James-creek canal contract, No.; and, as to so much of the proceedings in this

cause as relates to the award heretofore referred to, the bill is hereby dismissed, " etc. "And it appearing to the court that there is an unsettled account between the plaintiff and defendant, growing out of the James-creek canal contract, the court doth refer the same to Anthony W. Armstrong to state and settle said account between the parties to this suit, said Armstrong being...