Turley v. Turley

• Decision Date: 02 November 1886
• Citation: 1 S.W. 891,85 Tenn. 251
• Parties: TURLEY v. TURLEY.
• Court: Tennessee Supreme Court

1 S.W. 891

85 Tenn. 251

TURLEY v. TURLEY.

Supreme Court of Tennessee.

November 2, 1886

Appeal from chancery court, Knox county.

Bill for an accounting. Appeal by both parties.

Henderson & Joroulman, Walt. M. Cocke, and John W. Green, for complainant. W. H. Turley, for defendant.

LURTON J.

This litigation involves a long series of business transactions between two brothers, including two distinct partnerships extending from 1863 to 1880. Two settlements of their matters have been had, neither of which proving satisfactory to complainant, he has filed this bill to set both aside, and have a full accounting as to all their business matters.

The first of these settlements was made in 1873, and resulted in the execution by complainant of his note for a balance found against him of $8,555. In 1876, the complainant being dissatisfied with the final adjustment, another settlement was had of all matters prior to former settlements, as well as of a number of transactions occurring after settlement of 1873. This latter settlement, however, by admission of both parties, excluded a partnership in a tan-yard which had occurred after 1873. This latter settlement resulted in the execution of two notes by the respondent,--one for $3,267 payable to defendant; and another for $3,605, which, by request of defendant, was made payable to one Washington Scott. After this, and before filing this bill, considerable payments were made upon this indebtedness. A second partnership, and a number of other transactions, occurred between them. Complainant, discontented with the result of the second settlement between himself and brother, insisted upon a new accounting of all matters. An arbitration was agreed upon, and arbitrators selected, who seem to have undertaken to adjust their tangled accounts. Precisely what the result of this third settlement was cannot be satisfactorily learned; for before the award was published complainant filed this bill in which he assails the correctness of the settlements of 1873 and of 1876, and seeks to have both set aside, and all matters reopened, and a full account taken between them. The chancellor, upon the proof in the cause, set aside the settlements of 1873 and 1876, and ordered a full accounting, and all the matters in controversy were referred to the master. Upon this reference a vast bulk of proof was taken, and the depositions of complainant and respondent were each taken several times. The partnership books and private books and papers of each litigant were subjected to examination, and all the methods known to the law resorted to, with a view of at least reaching a result approximately correct. Many exceptions were taken to the report of the master, neither side being fully content. Upon these exceptions some modification was made in the report of the master, but a number of exceptions were overruled. From the final decree confirming the report of the master, after scrutiny and modifications, both parties have appealed.

The exceptions overruled, and relied upon here, nearly all relate to matters of comparatively small importance, concerning the business of the tan-yard partnership of 1873, and of a farming partnership of 1878. These exceptions we have examined, and are entirely content with the action of the master and the chancellor upon the matters involved. The proof upon each of the matters is contradictory, and there is in every case proof to sustain the report. In such case we cannot weigh and balance the proof to ascertain whether the weight of proof is in favor of the account as reported by the master and adopted by the chancellor. The report does not affirmatively appear to be wrong upon any of these matters involved in the exceptions, and, under the practice of this court, it will not be disturbed by us.

It is insisted, however, that, under section 3872, Code, (M. & V.,) upon an appeal to this court in a chancery cause, the party appealing is entitled to have a "re-examination of the whole matters of law and fact appearing in the record." This, manifestly, does not mean to require a re-examination other than according to the well-known and well-established course of procedure in the chancery court. In Daniell upon Chancery Pleading and Practice it is said, upon masters' reports upon questions of account, that "all questions and inferences of fact involved in the account are peculiarly fit for the consideration of the master; and, if he adopts the correct principle in point of law, his report will be conclusive, unless it clearly appears from the report, or otherwise, that he has acted under a mistake, or has abused or exceeded his authority." Daniell, Ch. Pr. (Cooper Ed.) 1248. In a note prepared by the learned American editor of the work cited it is said: "But where a matter of fact, depending upon conflicting evidence and the credibility of witnesses, has been referred to a master, his decision will not be interfered with on his mere judgment of facts, unless it is a very plain case of error or mistake." Many authorities are cited to sustain this note, which we have not had opportunity to verify. Daniell, Ch. Pr. (Cooper Ed.) 1299, note 5. In Vermont the finding of the master seems to be as conclusive as the verdict of a jury. Mott v. Harrington, 15 Vt. 185. In Massachusetts the master's report will not be reviewed when adopted by the chancellor on appeal. Von Vronker v. Eastman, 7 Metc. 163. See, also, Holabird v. Burr, 17 Conn. 563; Holmes v. Holmes, 18 N. J. Eq. 141.

Thus, by the rules of practice and procedure in matters of account involving consideration of conflicting evidence, when reported upon by the master, and adopted by the chancellor, are treated as conclusively settled, unless it clearly appears that the report is based upon an error of law, or is the result of a clear mistake. We have so held at this term of the court in an opinion by Judge SNODGRASS, and elsewhere reported. See Brown v. Dailey, ante, 884.

The practice, as determined in that case, has long, in effect, been the practice of this court, though possibly not formulated so fully in any decision; and it is strictly in accord with well-established principles of chancery procedure, and it would be a total misconception of the purpose and meaning of the statute referred to, to assume that the legislature intended to overturn so salutary a principle of practice and evidence.

The bill of complainant, in addition to these matters of account seeks to have the defendant declared a trustee for him as to a tract of land described in the pleadings as the "Cocke Farm." This land was originally owned by complainant, and was sold under a decree of this court to satisfy a vendor's lien thereon. At the decretal sale the defendant became the purchaser at the price of $4,500. The bill charges, and the proof satisfies us, that this land was bought under an agreement between complainant and respondent by which respondent was to bid in same, and take the legal title, and hold same as a security for the amount of his bid, and to secure himself against liability as security for complainant upon certain debts. It is unnecessary, and would be unprofitable, to recite the facts which lead us to this conclusion; and it is sufficient to say that we are well satisfied that defendant held said Cocke land only as security for repayment of purchase money, and as indemnity against liability as surety for complainant, and that these liabilities have either all been paid off by complainant, or constitute, to the extent they have been paid by respondent, a part of the decree in respondent's favor under the master's report. The defense suggested by ...