Appellants petitioned for a rehearing with respect to the item of $4,177.34, being partnership moneys deposited in First Security Bank of Pocatello and found by the trial judge to have been appropriated by Johnson to his own use.
That $4,177.34, belonging to the partnership, came into Johnson's possession and was by him deposited in First Security Bank of Pocatello, appears from copies of ledger sheets and deposit slips of the bank, introduced in evidence, showing deposits to the credit of the partnership at a time when its affairs were in Johnson's exclusive control.
Of the deposits making up the $4,177.34 are two items, one of $105 and another of $373, a total of $478, deposited April 1, 1933. Another deposit of $478 appears to have been made April 15, 1933. Appellants insist the second $478 is a duplication of the first.
An examination of the ledger sheets and deposit slips convinces us that appellants' contention in this respect is correct. It is apparent that after the deposit of $478 was made on April 1st, the checks for $105 and $373, which composed it, were returned and charged to the account; that thereafter, on April 15th, credit was again given for the deposit of $478. Thus the account was credited with $478 twice whereas only one deposit in that amount was made. *Page 356 In this manner Johnson was charged, in the accounting, with $478 which never came into his possession, and the administrator of his estate should be credited in that amount against the $4,177.34 found by the trial judge to have been misappropriated by him.
A like error in the judgment and decree occurred with respect to an item of $31.29 deposited in the account February 24, 1934. It appears that March 2d, the check constituting that deposit was returned and the amount of it was charged to the account; that March 7th, credit was again given for the same amount, resulting in credit for two deposits of $31.29 when, in fact, but one such deposit was made. The administrator of Johnson's estate is entitled to have $31.29 deducted from the item of $4,177.34.
The record shows, and counsel for appellants concede, that Johnson took and retained from the account of Bussell and Johnson, in First Security Bank of Pocatello, the sum of $1,800, which he retained as a credit on money claimed to have been due him from the partnership.
From Johnson's testimony it appears he claimed credit for $1,400, being the purchase price of an automobile which, he testified, he used in the interest of the partnership. The evidence does not show that the purchase of this automobile was ever discussed between Johnson and his partner, nor does it show to what extent it was used for partnership purposes. He also claimed credit for expenditures made by him in looking after the affairs of the partnership, from 1926 to 1932, inclusive, estimated by him to have amounted to $150 a year, making a total of $1,050. He kept no account of these expenses and did not specify in his testimony what they were for. These claims are not supported by the evidence and were properly rejected by the court.
Johnson claimed credit for the purchase price, freight and cost of handling, of seed potatoes used by the partnership and paid for with his own funds, and that the money so expended by him had not been repaid. This contention cannot be sustained. As pointed out in our original opinion, the trial judge found that Bussell and Johnson, between September 25, and November 1, 1931, had a full and complete settlement and accounting of all dealings between them in *Page 357 regard to the property, assets and accounts of their partnership and that the accounts of the partnership were, at said time, fully settled and satisfied and that neither was indebted to the other by reason of partnership receipts or expenditures prior to the settlement. That finding is sustained by the evidence. The record shows these seed potatoes were bought in 1928. Any indebtedness owing from Bussell to Johnson, arising out of that transaction, was satisfied and discharged by that settlement.
Our former decision is modified to conform to the views herein expressed. The trial court is directed to reduce the $4,177.34 item to $3,668.05. The petition for rehearing is denied.
Ailshie, C.J., and Givens and Holden, JJ., concur.
Budge, J., did not sit at the hearing and took no part in the decision.