#### Jesse Stiles, Appellant, *v.*Romanzo H. Haight, Respondent.

Third Department,

January 8, 1908.

Partnership accounting interest on account stated. — interest on firm money held by partner.

Where partners have adjusted their accounts in a transaction and agreed that one owes the other a certain sum, in an action subsequently brought for an accounting asTo an independent transaction it is error to charge the firm with interest upon thspt amount, for it should be charged to the partner who it was agreed was the debtor. ■

Under a contract of partnership providing that all moneys received by the partners should be credited to the account of the enterprise, a partner who has received money and had the benefit thereof must pay interest to the firm for . its use,

*61Appeal by the plaintiff, Jesse Stiles, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on' the 3d day of December, 1906, upon the report of a referee.

*Jesse Stiles,*for the appellant, in person.

*Will W. Smith,*for the respondent.

Cochrane, J.:

This is an .action for a partnership accounting. The parties as copartners conducted a lumber business concerning the lumber on a farm known as the Gibbs farm. This business was concluded on December 11, 1899, when the parties stated and adjusted all their accounts and transactions between themselves and agreed that the defendant was indebted to the plaintiff in the sum of $939.34. The complaint so alleges and the referee has; so found except that he has reduced such amount to $871.77 because of an admitted mutual mistake between the parties in making such adjustment. Such amount was not paid by defendant.

On the same day the parties entered' into a written contract as copartners concerning the lumber on another farm known'as the Cookingliarn farm. This second transaction- has also been concluded and the principal controversy relates to the adjustment of' the accounts concerning such transaction. By such written contract it was agreed that all moneys advanced by either party should draw interest until returned. •

The referee has found that the plaintiff advanced in the Cooking-ham enterprise $1,302.35, and that the interest on such advancement *“*together with interest on the amount due him upon the settlement of the Gibbs farm enterprise” was 138.39, and that plaintiff, received from such Cookingliarn enterprise $3^096.07; that the defendant advanced $3,623.17; that the interest on such advancement at the time of the commencement of this action was $191.01; that the defendant under the contract was entitled to $392 for services ;' and that he recei ved out of the enterprise $3,174.65. By making an ad justment of balances the referee accordingly found that plaintiff was indebted to defendant at the time of the commencement of the action December 19, 1908, on account of both the Gibbs, and *62Cookingliam transactions in the sum of $471.66 which, with the interest to December 3,1906, the time when judgment was entered, amounted to $554.67.

In arriving at such result the referee has treated the balance of $871.77 due plaintiff on the Gibbs transaction as if it were a debt due him from the firm and not from defendant individually. Plaintiff has been allowed interest thereon from the firm until it was extinguished by what he received from the Cookingliam transaction the same as if it were an advancement by him of capital in that transaction and defendant personally has not been charged' with interest thereon but'only with the principal in offsetting such prin- " cipal against what was due. him on the Cookingliam transaction December, 1903, when this action was commenced. The Gibbs and Cookingliam enterprises were entirely distinct from each other They depended on different contracts. The Cookingliam contract wás not made until after the completion of the Gibbs transaction and the mutual settlement and adjustment of the parties in reference thereto. Defendant personally owed plaintiff $871.77 as. liquidated and agreed upon between themselves before they made the Cookingham contract. Defendant, therefore, should be personally charged with interest on this latter amount. Such interest to the time of the commencement of the action December 19, 1903, was $210.34. Plaintiff, however, should, therefore, not receive cre'dit from the firm as found by the referee for “interest on the ’ amount due him upon the settlement of the Gibbsfarm enterprise.” Such interest with which he has been improperly credited and which has been improperly charged tó the firm is $53.65. It also appears ’ that in December, Í900, plaintiff had received from the. firm' on account of the Cookingham transaction $1,152.70 more than sufficient to pay for all advancements made by him. including interest. Defendant on the other hand advanced to the -firm moneys in excess of what he received. The contract provides that the money so received by plaintiff was to be credited to the account of the enterprise and as plaintiff has personally had the benefit thereof he should pay to the firm the interest thereon. Such interest for the intervening three years to the time of the commencement of the action is $207.48. Plaintiff received subsequent moneys from the firm, but the times and cir*63cumstances concerning the same are too indefinite to form a basis for a computation of interest. Crediting the firm, therefore, as against the plaintiff with the above items of $53.65 and $207.48, and charging defendant personally with the above item of $210.34, there was due defendant from plaintiff on December 19, 1903, $391.88 instead of $471.66, and on December 3, 1906, when judgment was entered, $461.05 instead of $554.67. In all other respects the judgment is right.

The judgment should, therefore, be modified by deducting therefrom ninety-three dollars and sixty-two cents as of December 3, 1906, the date of its entry, and as so modified affirmed, without costs.

All concurred.

Judgment, modified by deducting therefrom ninety-three dollars and sixty-two cents as of December 3, 1906, the date of its entry, and as so modified unanimously affirmed, without costs.