* NOTE. — The opinion in this cause was delivered at June Term, 1843. It appeared from the bill, that in May, 1837, the plaintiff, Melvin, and the defendants entered into partnership in a small country store; and, after carrying on the trade for about seven months, they dissolved by the defendants selling out to the said plaintiff, who was to take the debts at their nominal amount, the stock of goods on hand at cost and insurance, and some goods the defendant had at another store; and for the sum that might be found due to the defendants for their stock and advances to the firm, and their share of the profits and other things, the plaintiff, Melvin, was to give his bond to the other party. On the 14th of December, 1837, the parties came to a settlement in the premises, upon which the sum of $1,203.05 appeared to be due from the said plaintiff; and he gave his bond with the other plaintiff as surety therefor. The accounts *Page 39 between the parties, on which the settlement was made, were stated by the defendants, who were supposed to be the more competent accountants; and they were not particularly examined and compared with the books by the plaintiff, Melvin, as alleged in the bill. A few days afterwards, the defendants informed the said plaintiff, that they had discovered errors in the accounts before stated by the, which were in their (the defendants) favor, and offered to correct them. What these errors were, is not stated in the pleadings. But the parties proceeded to make the corrections; and by the second settlement the sum due to the defendants was reduced to $783.59; upon which the former bond was canceled and a new one given for the latter sum. At that time all the books and papers of the firm and the accounts stated between the parties, on which the plaintiff's bonds were founded, were delivered to the plaintiff, Melvin. The defendants afterwards instituted an action on the bond and recovered judgment; and then, in November, 1840, the plaintiffs filed this bill, and therein ask relief, on the ground that the settlement was erroneous, and that the sum, to which the defendants were entitled, was not as large as that for which the bond was given. For the purpose of establishing (56) that fact, the bill alleges, that the plaintiff, Melvin, was not skilled in accounts, and adopted the statements of the defendants without understanding them; but that he hath since caused a statement to be made from the books by competent persons, whereby the shares of each partner, for capital and other advances, interest and profits, have been duly ascertained, and whereby the whole sum truly due from the said plaintiff to the defendants appears to have been only $381.52, instead of $783.59. The bill then sets forth a statement of the effects of the firm at the dissolution, and of the accounts of the respective partners with it, as standing in their books; from which that balance of $381.52 is the result; and it states that the plaintiff, Melvin, had applied to the defendants to open the accounts and correct them, and that the latter had refused. The bill further states, that the plaintiffs are unable to point out positively in what manner the error arose, or in what item or items it consisted; but it alleges that the defendants were indebted to the firm in the sum of $478.12; of which $85 were for merchandise and appeared in the books among the general accounts, and $393.12 were charged in a memorandum in the cash book, which latter sum the plaintiffs are convinced was omitted to be charged to the defendants in the account settled, and with some other small mistakes, make an error to the amount of $402.07. The bill then seeks a discovery from the defendants of the items *Page 40 composing the account stated, and whether they did not omit to charge themselves with $478.12, or $393.12, or some other sum, with which they ought to have been charged, and what sum; and, also, whether they did not make improper charges against the plaintiff, Melvin, and what they were. And against the sum of $402.07, the bill prays an injunction and relief.
The answer admits the settlements, and that they were founded on accounts made out by defendants; that there were errors in the first, but that they were discovered and corrected on 19 December, 1837, when ( 57 ) the second bond was given. The answer states that there were various other dealings between the parties, and particularly for goods furnished from another store; that the defendants can not recollect the items composing the accounts, as stated by them; but that they were drawn out at length, and connectedly and minutely set forth all the dealings between the parties in partnership and otherwise; and that the same, as the defendants believed and still believe, contained a full, fair and just account between the parties, and was at the time delivered to the plaintiff, Melvin, and no copy kept by the defendants. And the defendants insist on the same as binding and conclusive, unless some error be shown therein. The answer denies that the defendants refused to re-examine the accounts; but, on the contrary, it states that, when the plaintiff, Melvin, sometimes after the settlement, suggested that there was an error, the defendants offered, if the said plaintiff would produce the settlement and point out any error in it, either of omission or false charge, that they would correct it; but the said plaintiff declined or omitted to show the accounts, and said they were lost. And they submit now to correct any error that can be established in their settlement.
A witness examined for the plaintiffs, states that he had been a clerk in the store, and was present when the settlement of 14 December was made. He is unable to state the contents of the account then stated between the parties; but he thinks that the account against the defendants in the cash book of about $393.12, as stated in the bill, was not brought into that settlement; and he also states, that some of the cash, which made up that sum, might, probably, have been laid out by the defendants for cattle and other effects for the firm, and not applied to the defendants' own use. This witness also attested the bond given on the last settlement of 19 December; and says it was given for the sum agreed on by the parties, as being due after then correcting all the errors of the previous settlement, as far as then detected; but that those corrections were made on the account by the parties themselves, who communicated to him the result *Page 41 alone, and did not mention the particular corrections on either side, nor does he know them. (58)
The cause was set for hearing upon the bill, answer and the deposition of this witness. The plaintiffs must fail for want of the requisite proof of their case. Having given their bond on the settlement of accounts, they can not be relieved from it, but for error in the accounts. If they can show an error, they may surcharge and falsify the account stated. The statement of this bill as to errors are very vague, and not, indeed, very intelligible; and, probably, if the defendants had chosen, the plaintiffs might have been stopped in limine for that reason. But the defendants submit to answer, and in the answer submit to correct any error the other party may be able to establish. By the answer the defendants purge themselves of all knowledge or belief of error, though they state themselves to be unable to answer to particular items being or not being charged or credited in the account stated, because one of the plaintiffs himself had the possession of the original settlement, and the defendants had no counterpart thereof; and defendants' memory would not serve him to restate the accounts at the distance of more than three years. The plaintiffs, therefore, gain nothing by the discovery sought from the defendants; and the latter give a reasonable account of their inability to make it more full, and insist that the contents of the account should be made to appear by the production of the account itself. Certainly, like every other writing, the contents must be shown by the instrument itself; and without being informed what were the matters embraced in the account, it is impossible to determine whether the settlement was right or wrong. Therefore, the plaintiffs should have accounted for the non-production of that document; which they have not done. It is true, the defendants state the plaintiff, Melvin, told them that he had lost it, and, for that reason, urged him to go into a settlement anew, which the defendants declined. But the plaintiffs have not proved the destruction of the instrument, nor stated upon (59) their own oath what has become of it, nor even given secondary evidence of its contents. They have, indeed, examined one witness, to prove that, in a previous settlement, which all parties admit to have been erroneous, a particular debt against the defendants was probably omitted. But the witness, without clearly *Page 42 establishing even that, informs us that there was a subsequent settlement, of the contents of which he is ignorant, and upon which the bond was given, which gives rise to the present controversy. Now, it may have been, that one of the errors of the first settlement which was corrected in the second, was with respect to the sum of $393.12, which the plaintiffs state was omitted, as they suppose; and this is the more probable, as that sum is so near the amount of the total errors claimed in the bill, namely, $402.07. But, however that may be, it is the plaintiffs' misfortune not to be able, by an admission drawn from the defendants or by other evidence, to show us what was included in the settlement; and, consequently, we can not see that the account embraced any false charge, or omitted any proper credit.
PER CURIAM. BILL DISMISSED WITH COSTS.