The petition for rehearing in this case has
been carefully considered, and the points and elaborate arguments of counsel for appellees fully examined, and all have received our earnest attention; and whilst a majority of the court do not in all respects agree with all the reasoning and deductions drawn from the evidence, in the. original opinion, yet as to the general conclusions arrived at we do agree, and are of opinion that a rehearing should not be granted.
As counsel for petitioner claims that some points have not been settled by the court, and that he does not fully understand the opinion upon some others, we will notice some of them; but it must not be inferred from this that we have not observed and given attention to all he has pointed out.
First—As the decree rendered against Mrs. Bradley, in the Woodford circuit court, was several as to her, and has been fully executed, and no appeal or writ of error prosecuted therefrom by either party, it may be considered final as to her, (so far, at least, as appellants are concerned,) as to all matters directly involved in the original bill. But it must be distinctly understood that we give no opinion as to the rights of complainant in the cross-bill filed on behalf of the estate of Moss, as against Mrs. Bradley, in which Moss’ representative, among other things, seeks relief on account of moneys claimed to have been paid by Moss to Bradley, and in consideration whereof the latter promised to pay or discharge certain indebtedness of Moss to. firm No. 2 and 3.
Second—With regard.to the item of, $28,265,25, it seems Moss owed this sum to firm No. 2 and 3, and by an arrangement between him and Bradley in reference to their own private matters, not connected with their firm business, Bradley was, as Moss claims, to pay or assume. this amount for him, to said fir'm No. 2 and 3. As a matter of law, Bradley and Moss had no right, as against the other partners, McCall and Frazer, and without their consent, to appropriate the money or accounts of the firm to their individual use. Nor had Bradley any right to credit Moss on the firm books with this sum, unless it was actually paid into the firm, or was in some way authorized or ratified by the other members of the firm. If it was charged to Bradley on the firm books of some firm in which all the members of firm No. 2 and 3 were members, or in which McCall and Frazer were both members, by their consent, they would be bound thereby; or if McCall and Frazer, in the' decree that was rendered in their favor and against Mrs. Bradley, in this case, whilst it was in the Woodford circuit court, recovered their share of this claim, then that would ratify the credit of it on the firm books, to Moss, and would be a proper, credit to him on his partnership accounts with the firm. But if they never authorized the credit, (and we find no evidence that they did,) and if they have not ratified it in either of the above ways, or in some other way binding upon them, then Moss is not entitled to that credit on the firm books of firm No. 2 and"3. It may be added, that in this matter of crediting Moss on the books of firm No. 2 and 3, with this item, and charging the same to Bradley, the latter was acting as the agent of Moss, and it was also a part of his special duties to keep the books of the firm, and see that proper entries were made, and with which McCall and Frazer had nothing to do, and if a loss is to be incurred either by Moss or appellants, by reason of the negligence of Bradley, it seems to us more equitable that the estate of Moss or Bradley should bear it, than that Frazer and the estate of McCall should do so. If, However, it is true, as we understand Moss to claim, that he actually paid Bradley this amount in the settlement of their individual transactions, and that Bradley, in consideration thereof, promised Moss to pay or account to firm No. 2 and 3 for that amount, and has failed to do so, and if neither Bradley, nor Mrs. Bradley, as his legal representative, has paid or accounted to Moss therefor, or been released or discharged therefrom," and it has in no manner been settled between the estates of Bradley and Moss, or his estate, then the remedy of his executor or administrator would seem to be against the estate of Bradley, rather than 'appellants.
Third—There is much force in the objection made to sending the Dows & Co. matter back to the master for further proof. It is claimed that it is not embraced within the scope of the bill. The bill is for an accounting and settlement of the partnership affairs, and we do not deem it necessary that each item of the accounts or claims that is to be passed upon by the court or master, should be specifically set forth in the pleadings. Counsel contend that the evidence regarding this transaction should not be heard or considered, because, as they claim, “it is averred in the most positive terms in the bill, that, except as to the interest, the accounts upon the books are true and just. ” We have read the copy of the bill, as given in the abstract, very carefully, and are unable to find such an allegation. It is also objected that it ought not now to be referred back again to the master, because appellants were negligent in not making their proof concerning this claim when the case was being considered by the master before. We regard this point as entitled to great weight, but owing to the peculiar circumstances of this case, the large amount involved, and the. difficulty of understanding it in all its complications, and in the multitude of items to be looked up and considered^ it is not strange that the master or counsel should have overlooked this item. We are inclined to think it would perhaps be rather harsh and inequitable in this instance to enforce the rule invoked for- appellees, and especially as the case will have to go before the master "again; and we can not but think that a careful examination of the books of the various firms will establish, beyond a doubt, which of them received the amount from Dows & Co., and enable the court properly to adjust the equities between the parties, arising out of this transaction.
Rehearing denied.