#### Varner’s Appeal.

On a bill in equity to enforce a partnership settlement, filed in 1886, it appeared that plaintiff and defendant, as partners, had settled an account, in 1880, showing that the defendant owed complainant a certain sum. Defendant claimed that there was a mistake in the account, inasmuch as he had not been credited on the books of the firm with a personal check given by him to a firm creditor in payment for certain cattle bought on the firm’s account. There was no evidence of this transaction except the check, and the master found that the defendant had failed to establish a mistake in the settlement. Held, that, while the check might beget a suspicion that there was error, the court would not disturb a settlement, carefully made and of long standing, on a bare suspicion.

Oct. 25, 1888.

Appeal, No. 131, Oct. T., 1888, from C. P. No. 1, Allegheny Co., to review a decree in favor of the complainant on a bill in equity by James Aull against Melchor Varner, at June T., 1886, No. 108.

The averments of the bill, filed in 1886, and the facts, were stated as follows, by the master, N. S. Williams, Esq.:

“The following allegations of fact, contained in the paragraphs of plaintiff’s bill hereinafter designated, are either expressly admitted or are not denied by the defendant’s answer, and are therefore taken to be as true, viz:

“ 1. That the said James Aull and M. Varner, on or about Nov. 1, 1875, entered into and formed a co-partnership, under the firm name of Aull & Varner, for the purpose of buying, and selling and dealing in live stock, in the city of Pittsburgh, Pa., having their chief place of business at the Central Stock Yards at East Liberty, in said city. By the terms of the partnership, each of the parties was to share equally in the profit and loss of the business.

“ 2. That the said firm of Aull & Varner commenced business about the date of the formation of said partnership and continued the same until about Nov. 1, 1877, when the partnership was dissolved by mutual consent.

“4. That on Aug. 12, 1880, all the debts and liabilities of said firm of Aull & Varner had been fully paid and satisfied and were properly charged against the firm.

“ 6. That plaintiff has not, since the said partial settlement was made, collected or received any of the assets or claims due the said firm, except such as were divided and set apart to plaintiff to be collected and held as his own separate property.

“ 7. That the said Melchor Varner has not paid over to plaintiff the sum of $890.51, the balance due plaintiff as shown by the books of the firm, nor any part thereof.

“ The controverted allegations of' fact are contained in the third and fifth paragraphs of plaintiff’s bill, and are substantially as follows, viz:

“‘ 3. That, on or about Aug. 12, 1880, the said James Aull and M. Varner entered into and made a partial settlement of the business of said partnership and stated an account between them of all the *229business of said firm up to that date, except certain outstanding claims due the firm, which were at that time regarded as uncollectable and were therefore not divided between the partners. That, by-said partial settlement and account stated, there appeared due to James Aull from M. Varner the sum of $890.51, which sum of money the said Varner then and there promised to pay to said James Aull on demand.’

“‘5. That since the said .partial account and settlement was made, the said M. Varner has collected out of the claims due the said firm of Aull & Varner, which, at the time of said partial settlement, were regarded as uncollectable and were notjdivided, as here-before stated, the following amounts: First, from Jacob Nusser, $532.33 and interest; second, from Jacob Berry, on account of Berry Bros., $400.12 and interest thereon; third, from John Lacher and his estate, a -claim for $2,285.05, a sum, the exact amount of .which, the plaintiff is unable to state. In addition to the foregoing sums, plaintiff has reason to believe, and does believe, that said defendant has, since the partial settlement was made, collected and received various other sums upon claims due the said firm, and has retained the same, but plaintiff is unable to state the several amounts thereof.’

*“*The allegations contained in the 3d and 5th paragraphs of plaintiff’s bill are denied by the defendant’s answer. The main issue then is as to the alleged settlement between the parties on Aug. 12, 1880, defendant’s acknowledgment of indebtedness and promise to pay, and the collection and retention by defendant of the Nusser, Berry and Lacher claims alleged to be due the firm of Aull & Varner. From the evidence, the master finds the following facts in regard thereto:

*“*First, as to the alleged settlement of Aug. 1, 1880, defendant’s acknowledgment and promise: In support of plaintiff’s allegations, is the testimony of plaintiff himself, and Mr. Dunkeld, the firm's book-keeper. Both of these gentlemen testify distinctly that there was such a partial settlement and that, at that time, the defendant, Varner, admitted that the account, as then stated, was correct, and the balance shown thereby due from him to James Aull, and that Varner promised to pay the same. The defendant denies that there was such a partial settlement as claimed, but admits there was a meeting at the time. Fie says, in answer to the following questions by his counsel :

Q. You remember you were at the meeting? A. Yes, sir. We got the books to figure up what debts were good. Q. It is alleged, by Mr. Aull and Mr. Dunkeld, that, at the partnership settlement, you agreed to pay Mr. Aull $890. Is that true ? A. I agreed to pay Mr. Aull what I owed him. Q. Did you admit that you owed him $890? A. What I said about that was, that, if the books showed that I owed anything, I’d pay him.’

“ On cross-examination, Mr. Varner says: ‘ Q. Did you not *230promise, in the presence of Mr. Dunkeld and Mr. Aull, to pay that balance? A. Yes, sir, if there was anything coming.’

“ It can hardly be seriously contended that there was not such a settlement made as contended for by complainant, to this extent, at least, that the plaintiff and defendant went over their mutual accounts together and a balance was struck in favor of the plaintiff in the sum of $890.51, not including the Nusser, Berry and Lacher claims above-mentioned. Indeed/there is little, if any, controversy between the parties on this point, the difference being more in the name than in the substance. There is, however, a clear controversy as to the admission alleged to have been made by Varner on that occasion and his promise to pay the balance then struck. According to Mr. Varner, his admission was a qualified or conditional one, in effect that he would pay if the books were correct, that he thought there might be a mistake in the books. If Mr. Varner is right as to the qualified nature of his promise to pay, it becomes necessary to pass upon the correctness of the books. In regard to the accuracy of the books, the master says they have been examined by competent persons at the instance of the respective parties, and the only suggestion of error or inaccuracy is that of Mr. Bender, the expert called by Mr. Varner, in regard to the credit of James Aull’s individual account $2,258.29, thirty-two head of cattle purchased by J. F. Saddler & Co. This, Mr. Bender thinks, from check drawn by M. Varner, dated April 12, 187-, for $2,258.29, payable to the order of J. F. Saddler & Co., and endorsed in the name of J. F. Saddler & Co., said check should be credited to M. Varner’s account and not to James Aull’s account. This being the only error suggested on behalf of Mr. Varner, if it should be found that the credit of $2,258.29 was a proper credit to James Aull’s individual account, then the balance struck Aug. 12, 1880, was correct, and, according to Mr. Varner’s admission and promise, no other defence could be urged. How was the entry of $2,258.29 to the credit of James Aull a mistake ?

“ The master, from a careful consideration of all the testimony bearing thereon, finds that the respondent has failed to show that this entry was an error. While, from the date, amount and payee of the check aforesaid, it was probably given in payment of the Saddler cattle, yet it by no means follows that the credit to James Aull’s account of the same amount was an error. The master bases his finding that the credit to James Aull is a proper one, from the following considerations: This being an attempt on the part of defendant to relieve himself from a mistake, the burden is upon him to show, by clear and satisfactory evidence, the mistake claimed. The only evidence that the entry is a mistake, is the check of M. Varner for $2,258.29 to older of J. F. Saddler & Co., with its endorsements. There is not a scintilla of evidence outside of the check itself. On the other hand, there is the admitted correctness of all the other entries in the account, the manner in which the *231books were kept; Mr. Dunkeld, the book-keeper, testifies positively that the entry was made either at the instance of Mr. Aull or Mr. Varner,. and Mr. Aull testifies that if the entry was made at his direction he was entitled to the credit; and the length of time that had elapsed, from the entry to the alleged discovery of the mistake, some nine years. It also appears, from the testimony, that Mr. Aull was in the habit of collecting large sums of money and turning the same over to Mr. Varner, without having Varner charged with the amounts so paid to him, and it is possible that Aull may have turned over to Varner the exact amount of this check. The evidence discloses the fact that, outside of the accounts regarded as uncollectable, including the three accounts mentioned in the fifth paragraph of the bill, the venture resulted in a net profit of some $2,000, and that James Aull had paid over to Varner all the money received by him outside of the money he had paid into the firm, some $300 or $400, and that Mr. Varner received and had almost entire charge and control of the money belonging to the firm. It therefore appears that, on a settlement of the firm’s business, there would be about $1,000 due James Aull; and that this result is arrived at entirely independent of the Saddler matter, and corresponds so closely with the balance struck on Aug. 12, 1880, is strong corroboration of its correctness. The master, therefore, finds that, in accordance with the settlement made between the parties, the defendant, M. Varner, is indebted to the plaintiff in the sum of $890.51, with interest from Aug. 12, 1880, the date when said amount was ascertained and determined.”

The master found in favor of the plaintiff on the other items claimed, and recommended a decree accordingly.

The following exceptions, inter alia, were filed to the master’s report:

1. The master erred in finding, as a matter of fact, that there was a partial settlement made and agreed to between the parties on Aug. 12, 1880.

2. In finding that the result arrived at in the alleged settlement of Aug. 12, 1880, was entirely independent of the Saddler matter.

4. In finding that the entry of the check of M. Varner, for the payment of thirty-two head of cattle bought by the firm of Aull & Varner from J. F. Saddler & Co., and dated April 12, 1877, for $2,258.29, and entered in the books of Aull & Varner to the credit of James Aull, and not to the credit of M. Varner, the drawer, was not clear and satisfactory evidence of a mistake, thereby shifting the burden of proof upon the plaintiff

5. In drawing the following inference from the facts, viz: While from the date, amount and payee of the check aforesaid, it was probably given in payment' of the Saddler cattle, yet it by no means follows that the credit to James Aull’s account of the same amount was an error.

6. In finding that the check of M. Varner to J. F. Saddler & *232Co. is the only evidence of mistake or error in the entry of the same amount to the individual credit of James Aull.

7. In finding that James Aull did not draw out of said partnership business any money during said partnership, except three or four hundred dollars, put in by him, as the evidence in the case, as well as the books, show, after correction of error in the Saddler matter, that the account was overdrawn to the extent of $1,368.60.

8. In not giving defendant credit for $2,258.29, the amount of the Saddler check.

9. In not finding, under all the evidence in the case, that plaintiff was indebted to the defendant in the sum of nine hundred and two dollars and forty-four cents, with interest thereon from Nov. 1, 1877, and costs of suit.

The court dismissed the exceptions and entered a decree, filing the following opinion:

“ The bill in this case prays for a settlement of partnership accounts, in a business conducted by the parties, commencing Nov. 1, 1875, and ending Nov. 1, 1877. The cause was before the court upon master’s report, filed May 7, 1887, and referred back to him for further testimony, and is now before the court upon a supplemental report, sustaining the conclusions at first reached.

“ The arguments of counsel were limited to one matter of dispute arising out of any entry upon the books of the firm under date of April 10, 1877, of $2,258.29, to the credit of plaintiff, which defendant now claims was erroneous and should, instead, have been entered to his credit.

“ On Aug. 12, 1880, the parties met with their book-keeper for the purpose of making a settlement, and did actually settle all matters, except some accounts which were regarded as worthless, each partner taking his share of such uncollected accounts as were considered good. By this settlement, the defendant was found to be indebted to plaintiff in the sum of $890.15. This balance was found upon statement of the accounts with credit of $2,258.29, as above stated. The defendant denied that such settlement had been made, but it was proven by the testimony of the plaintiff and the book-keeper of the firm, corroborated by papers made at the time, which show a consideration of many details of the business. The plaintiff testifies that defendant frequently promised to pay this balance, and never disputed its correctness until shortly before this bill was filed.

“ The plaintiff’s case, therefore, stands upon the entries in the books, and upon a settlement made assuming their correctness. In order to avoid the effect of these, it is incumbent on the defendant to show a clear mistake in the accounts of which he had no knowledge.

“ It appears in evidence that $2,258.29 was the price of a lot of cattle bought by plaintiff from J. F. Saddler & Co., and that the defendant on April ibth, 1877, gave his check to J. F. Saddler & Co. *233for that amount. This fact may raise a suspicion that there is some error in the accounts, but the mode of transacting business by the parties was such that it would not require a finding that such error in fact existed, and certainly is not so clear as to justify a disregard of the entries and settlements made by the parties.

“ The facts are so fully and fairly stated by the learned master that it is not deemed necessary to restate them. His conclusions are not only warranted by the law and evidence, but meet the full approval of the court.”

*The assignments of error*specified that the court erred, x, in approving the master’s finding contained in the first exception, stating it; 2, in finding as contained in the second exception, stating it; 3, in not [ ? ] finding as contained in the fourth exception, stating it; 4, in not sustaining the fifth exception, quoting it; 5, in not sustaining exception to master’s finding of fact, stating the sixth exception; 6, in finding as contained in the seventh exception, stating it; 7, in not giving credit as stated in the eighth exception, stating it; 8, in not finding as contained in the ninth exception, stating it; 9, in not sustaining exceptions to master’s report and entering decree for defendant.

*H. J.*Bigger, with him *C. S. Fetterman,*for appellant.

It being admitted that the books do not give Varner credit for the amount of the check, and it appearing that the same paid for the Saddler cattle, he is certainly entitled in this proceeding to have it properly credited, if that is denied him, the statute of limitations or the plea of res adjudicata forever shuts him out.

The uncontradicted and undisputed evidence, when the testimony finally closed in the case, was, that the books showed all the money charged and credited that was paid out or that passed from one partner to the other. The master was mistaken when he found that Mr. Varner had not been charged with *all*the money paid over by Aull to him, and that is the turning point in this case. Varner testifies that he never received money from Aull unless Dunkeld, the book-keeper, knew of it, and he is not contradicted. The evidence of gross mistake could not be clearer than has been proven in this case. No accountant would hesitate, on being shown these books and check, and after hearing the circumstances surrounding the entry, to correct the entry.

An account stated is not conclusive, but only presumptive evidence against the party admitting a balance against himself, arid he is not estopped from showing gross error. Vantrus *v.*Richey, 8 W. & S. 88; also, Daniels, Ch., 6th ed.,p. 668; Bright. Eq., pp. 63, 135 and 484; Bispham, Eq., 4th ed., 245.

*J. M. Garrison,*for appellee.

This court will not reverse the court below and the master upon findings of fact, unless upon clear evidence of a plain mistake. Sproull’s Ap., 71 Pa. 138; Kisor’s Ap., 62 Pa. 435 ; Logue’s Ap., 104 Pa. 136; Fahnestock’s Ap., 104 Pa. *23446; Gilbert’s Ap., 78 Pa. 266; Dellinger’s Ap., 71 Pa. 425 ; Miller’s Ap., 30 Pa. 478.

Nov. 5, 1888.

When facts have been found by the auditors and approved by the court below, the case must manifest most flagrant error in order to justify the supreme court in interfering with the report. Even on appeal, as distinguished from a writ of error, they cannot properly be called upon to try questions of fact. Mengas’s Ap., 19 Pa. 222.

The master found, from abundant evidence, that Aull and Varner, with their book-keeper, made a settlement of the partnership business, which settlement resulted in a balance in favor of Aull of $890.51, which sum Varner then and there promised to pay.

The allegation of the mistake rests solely upon this naked check, wholly uncorroborated by any other evidence.

The check ought not to have been admitted as evidence. This, 1, by analogy to the statute of limitations, the defence set up being in the nature of a cross action, for relief against the settlement, on the ground of mistake; and, 2, upon the principal that, where partners make and state an account between themselves, and afterwards acquiesce therein for such a length of time that the evidence in support of the correctness of the account as stated has been lost by death, or otherwise, or, as in this case, has passed from the recollection of living witnesses, in such case equity will not permit either party to undo the settlement on the ground that a mistake was made in stating the account.

But, admitting the check, there is no other evidence of a mistake. On the other hand, there are all the other facts found by the master, on this point, corroborating the correctness of the settlement.

Per Curiam,

We have no fault to find with the conclusion reached by the master and court below. It is true, as said by the learned judge, the Saddler & Co. check might beget a suspicion that there was an error in the previous settlement, but we cannot agree to disturb a settlement, carefully made, and of long standing, on a bare suspicion.

Decree affirmed at costs of appellant.