I do not think there is any force in the objections by the defendant that the summons is not for relief, but for the recovery of a specific sum of money. The judgment should not be reversed for that cause if it appears from the evidence that a case for relief was made out. The defendant had answered the complaint, and the referee in court could grant only relief consistent with the case made by the complaint and embraced within the issue. (See Code § 275, and Marquat v. Marquat, 2 Kern., 336.) The complaint alleged that there was a mistake in fact in the former accounting, and demanded a new accounting, and that the mistake be rectified and the defendant pay a specific sum claimed to be due, namely, four hundred dollars. The defendant plead the settlement and claimed that there was nothing due. The real issue of fact was one clearly within the scope of the complaint and answer, namely, was there or not mistakes made in the accounting; and the principal issue of law was, admitting that there were errors, omissions or mistakes on such accounting, was not the plaintiff barred and precluded from opening the account and receiving any balance found due by reason of such omission or mistake, by the due-bill given and receipt indorsed thereon?
The referee found both questions in favor of the plaintiff.
The instrument signed by Gardner is nothing more or less than a simple technical receipt for so much money paid; and the consideration of such a receipt could always be inquired into. There was an accounting had, and so much money found due from the defendant. For that amount — reciting *Page 500 how it arose, namely, "on settlement of flour and wheat business" — defendant gave his due-bill or note. On this due-bill was indorsed, simply, received of the maker "the within amount in full;" that is, the payee acknowledged to have received the full amount of the note or due-bill. I do not see how, by any fair interpretation, any other or different meaning can be gathered from the due-bill and receipt. But were it otherwise, and if we construe it to mean that Gardner had received the money in full of the balance found due him on settlement of the wheat and flour business, it would not preclude Gardner or his assignee from showing that there was a clear mistake made in such settlement; a considerable sum of money, which should have been charged to the defendant, having been omitted from the account rendered by mistake. It might change the burthen of proof, and compel the plaintiff to show that mistake, but would not preclude his recovering if he succeeded in showing that such mistake was made.
The cases of Coon v. Knapp (4 Seld., 402), and Kellogg v.Richards (14 Wend., 116), have no application to this case. There was no mistake pretended or alleged in these cases. Both were cases of compromise — one for injuries received by the upsetting of a stage; the other, giving up a note of the defendants, and receiving in full, by way of compromise, a smaller note of third parties. In both, there was something more than receipts. There were virtual contracts, reduced to writing; and efforts were made in both cases to show that there were understandings, agreements or conditions outside of these written contracts, and not reduced to writing, upon which the plaintiffs relied.
But I think the referee allowed the plaintiff too much. He finds that, the funds having been furnished by Gardner, and the accounting showing that there were errors in favor of the defendant, against Gardner, for $316.60, he therefore orders judgment in favor of plaintiff, as Gardner's assignee, for that amount, with interest and costs. But defendant was more than the agent of Gardner. He was partner in the transactions, and the funds furnished by Gardner appear to *Page 501 have gone into the partnership account. When, on a final settlement, there was a balance found in the hands of the defendant, that amount was assets in his hands belonging to the partnership. As partner, the defendant himself was entitled to one-third of such balance. The judgment should have been for two-thirds of $316.60, together with interest and costs. This objection does not appear to have been distinctly raised in the bill of exceptions and case, and was probably overlooked at the General Term of the Supreme Court. It is now distinctly presented by defendant's points, and I think the judgment should be modified by a deduction of the one-third of the amount found due, and affirmed for the balance, with interest. If the judgment is thus modified, there can be no costs on this appeal to either party.
DAVIES, PORTER, DAVIS and BROWN, JJ., concurred.