Dolan v. Mitchell

McLENNAN, j.

The action was commenced on the 21st day of October, 1897, for an accounting between the parties, who were co-partners, and for a settlement and adjustment of all claims and demands between them. The plaintiff and defendant entered into co-partnership on or about the 1st day of April, 1897, for the purpose of conducting a meat market, under the name of Mitchell & Dolan, at the village of Penn Yan, N. Y. They continued in business as such co-partners until the 11th day of October, 1897, when said co-partnership was terminated by mutual consent. No accounting or settlement of the partnership business had ever been had. On the 1st day of June, 1889, the defendant loaned to the plaintiff the sum of $50, which was payable on demand; and at the same time the defendant commenced to work for the plaintiff, who was then conducting a meat market in said village on his own account, at the-agreed price of $6 per week, and worked for him until the 1st of June, 1890. The defendant afterwards worked for the plaintiff two additional weeks, at the agreed price of $9 per week. The action,-'' by stipulation, was referred to D. A. Marsh, as referee, to hear and determine the same. There was no dispute upon the trial, and no question is made upon this appeal, as to the partnership accounts,"- and the finding of the referee in that regard is not complained of. The referee found that the net amount chargeable to' the defendant upon said accounting was $541.20, and that the net amount chargeable to the plaintiff upon said accounting was $238.39, and that there was due and owing from the defendant to the plaintiff, on account of said co-partnership transaction, the sum of $151.41. The referee also found that the services rendered by the defendant to the plaintiff from June 1, 1889, at the agreed price, amounted to the sum of $330; that the plaintiff paid to the defendant on such account at different times between August 10, 1889, and May 4, 1892 (15 payments in all), the sum of $268.95, leaving a balance due and owing from the plaintiff to the defendant, on account of the services rendered by him, of $66.05, which, with interest, amounted, at the date of the report of the referee, to $90.66. The referee deducted said sum of $90.66 from the amount which was due and owing from defendant to the plaintiff by reason of their co-partnership transactions, which left a balance of $60.75 in favor of the plaintiff, and the referee ordered judgment for that amount in favor of the plaintiff and against the defendant. The referee found that the $50 which was loaned by the defendant to the plaintiff on the 1st day of June, 1889, was barred by the statute of limitations, and refused to give the defendant credit for that amount, and the rejection of that item by the referee presents substantially the only question upon this appeal.

The defendant contended upon the' trial and upon this appeal that the $50, with his account for services, constituted but one account between the parties, and that the payments made by the plaintiff from time to time down to May 4, 1892, prevented the statute from running against the item of $50. The plaintiff’s contention was that the $50 loaned to Mm by the defendant was no part of the account, but was a separate and independent transaction. The plaintiff demanded a bill of items from the defendant immediately after the answer was served, and the defendant, by his attorney, furnished such bill of items, which may be found at page 512 of the printed case. In substance, it was as follows:

1889.

.Tune 1st. To cash loaned on demand................................ $ 50 00

1892.

May 4th. To balance due on wages................................. 66 05 .

To Interest due on same.................................. 47 28

Total ...................................................... $163 33

And then was added: “The above loan matured, by demand made for payment of the same, January 1st, 1893.” -

Such bill of items, when analysed, discloses the fact that the defendant considered that all the payments 'made by the plaintiff, above referred to, were made upon,- and in payment for, the services rendered by him, and that no part of said payments were to be applied on the loan of $50. It is also evident from the bill of items that the defendant’s attorney understood at the time that the statute did not run, as against the item of $50, until demand was made, to wit, on the 1st of January, 1893.

At page 13 of the printed case the defendant said:

“Q. At the time you let Dolan have this $50, on June 1, 1889, was anything said about the time of payment? A. There was. He was to pay me when X called for it. I called on him for it on January 1, 1893.”

It will be observed that the $50 was demanded of the plaintiff on the 1st of January, 1893, and after all the payments above referred to were made. The account kept by the defendant, as appears in the printed case, would seem to indicate that he regarded the $50 item as a part of the general account; but, when the evidence is read in connection with such account (being Exhibit D), it will be found that he kept the credits upon one page of his book (being a little pass book), and the debits on another page, and that the footings on Exhibit D were.not made until the time of the trial, or very shortly before. So that there is nothing in the manner of keeping the account which would indicate that the defendant regarded the $50 item as a part of the account. In fact, the evidence quite clearly indicates that the defendant regarded the $50 loan as an entirely separate and distinct transaction between him and the plaintiff.

The foregoing is all the evidence in respect to the item of $50 loaned to the plaintiff. It clearly appears that such loan was a transaction of a personal nature, entirely distinct from the partnership. It was a loan of money to be paid on demand, and it therefore became due forthwith; and an action against the borrower, unless brought within six years from the time the loan was made, was barred by the statute of limitations. Wheeler v. Warner, 47 N. Y. 519. As before said, the referee found that the item of $50 was barred by the statute of limitations; and such finding was justified by the evidence, and no other conclusion would have been warranted.

The defendant also contends that he should be credited with $9.50 for beef which he sold to the defendant on April 28, 1892. There is no evidence in the case relating to such item, except that it is one of the items in the account which the defendant kept, and which account the plaintiff introduced in evidence. The plaintiff, by putting such account in evidence, containing this charge against himself, virtually conceded the correctness of the item. Upon the evidence, we think the referee was in error in not crediting the defendant with such item.

The only questions litigated before the referee were those arising out of the counterclaim set up by the defendant, which involved personal, and not partnership, transactions; and, as the decision was adverse to the defendant upon such question, the referee properly allowed costs to the plaintiff.

There- are no exceptions as to the admission or rejection of evidence which- requires consideration.

The judgment should be modified by deducting therefrom the sum of $9.50, with interest thereon from April 28, 1892, and as modified affirmed, without costs of this appeal to either party.

Judgment modified by deducting therefrom the sum of $9.50, and interest thereon from April 28, 1892, and as modified affirmed, without costs of the appeal to either party. All concur, except FOLIETT, J.,'dissenting.