Swain v. Knapp
| Decision Date | 04 November 1885 |
| Citation | 25 N.W. 397,34 Minn. 232 |
| Parties | David M. Swain v. Benjamin Knapp |
| Court | Minnesota Supreme Court |
After the decision of a former appeal in this action, (reported 32 Minn. 429,) affirming the judgment of the district court for Washington county, an accounting of the earnings and profits of the steamboat Jennie Hayes was had before a referee, as directed by the judgment. A question being made as to the years which the accounting should include, the plaintiff moved the district court for an order directing the referee to take the account for the years 1881, 1882, 1883, and 1884. On this motion testimony was taken, and an order made by McCluer, J., confining the accounting to the year 1883. From this order the plaintiff appeals. Plaintiff was owner of one-third, and defendant of two-thirds of the steamboat in question.
Order affirmed.
Fayette Marsh, for appellant.
Thompson & Manwaring, Clapp & Macartney, and Dike & Burdick, for respondent.
The plaintiff and defendant were part-owners of the steamer Jennie Hayes, which they had employed for their common profit during the navigation seasons of 1881, 1882, and 1883, under the management of defendant as master. The plaintiff, having become dissatisfied with the management of the business by defendant, brought this action, in the spring of 1884, for an accounting of the earnings of the boat for the three previous years, and for a sale of the vessel and a division of the proceeds, and for a temporary injunction restraining defendant from using the boat during the pendency of the action. The defendant in his answer, among other things alleged a full and final settlement and account stated of the business of 1881 and 1882. A preliminary injunction was issued in accordance with the prayer of the complaint; but this was, on the 16th of April, on motion of defendant modified so as to permit him to run the boat on certain waters until the further order of the court, but forbidding him from creating or contracting any debts or liabilities on account of the boat which might or could become a lien on the same, or upon which plaintiff might become liable, except the same be paid out of the current earnings of the boat. The plaintiff also served a written notice upon defendant withdrawing from him any right, power, or authority to represent him (plaintiff) in the management of the boat or in conducting the business of the same, and requiring him to contract no bills or liens against the boat or for running the same, and also notifying him that he would resist the payment of any such claims, demands, or expenses incurred by defendant, either as partowner or master. The defendant then took possession of the boat, and ran it during the season of 1884.
On the 10th of July, 1884, judgment was rendered in favor of the plaintiff, ordering a sale of the boat, and appointing a referee to take an accounting, but leaving undetermined the issue as to whether there had been a settlement and accounting between the parties of the business of 1881 and 1882. On the same day defendant, having filed a supersedeas bond, took an appeal to this court which affirmed the judgment on the 25th of November. 32 Minn. 429. Subsequently, on motion, plaintiff applied to the district court for an order directing the referee to take an accounting of the business of the boat for the years 1881 to 1884, inclusive. The court denied the motion, and from that decision plaintiff appeals.
The court refused the accounting for 1881 and 1882, for the reason that he found as a fact that the parties had already had a full and final accounting and settlement as alleged in the answer. He denied an accounting for 1884, upon the ground that under the facts the plaintiff was entitled neither to a share of the earnings nor to compensation for the use of his share of the vessel. In the interest of order, which is the first principle of the law, we cannot refrain, in passing from referring to the very irregular practice adopted by counsel in taking a judgment appointing a referee to take an accounting, but leaving undetermined the very issue upon which the extent of the accounting depended, and then trying...
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