Swofford Bros. Dry Goods Co. v. Randolph

ON REHEARING.

An opinion was rendered in this case on the 10th day of May, 1910. On motion of defendant, a rehearing was had on the ground that the statement of facts were not strictly accurate. The statement had reference to proof of plaintiff in the accounting, for his advances, his disbursements and for the value of his services.

The statement is as follows: “The plaintiff in order to prove those claims introduced copies of entries in its books, the production of the. books being waived.' This is alleged as error. They do' not stand upon the same footing as books kept by merchants with their customers, but were kept by plaintiff for *401its own nse and we donbt that they were competent evidence as between the plaintiff and defendant. But there was other evidence that they were correct; except as to one or two small items, and as defendant did not offer any countervailing evidence we do not regard the error, if it was one, that ought to be considered important.”

Upon further examination of the record we find that there was other evidence besides plaintiff’s book entries going to show the advances and disbursements made by the plaintiff while dealing with the land, while there was no satisfactory contradictory evidence offered on the part of the defendant. "We think under the circumstances the statement was substantially correct. The statement of the referee is that “no attempt has been made before me to impeach the accuracy of the account.”

However, it is still insisted by the defendant that plaintiff should be charged with the amount it received for the land after it had bid it in at the sale under the trust deed.

The referee found that the land sold at its full value at said trustee’s sale; if so, plaintiff should be charged with that amount only, plus amount of rents received while in possession. That we held and still hold to be the true measure of its accounting. Had plaintiff’s act in causing the land to be sold under the trustee’s deed, been wrongful, perhaps the rule invoked by defendant that it should be charged with the amount it received at said subsequent sale ought to be applied. But as we have seen the sale was free from fraud, and under such circumstances, the plaintiff’s office of trustee ceases when it accounts for the money received at the sale under said deed of trust, and for rents, less expenses and disbursements, etc. We adhere to our former opinion. Affirmed.

All concur.