The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1883-10-25
In the second nlace the lam cannnt

I'd and unequal services bestowed on the CON
rs mon business and for the obvious reaso
: that it is impossible to see how far the rela
!. tive experience, skill. ability or even know
a character and reputation of each entere
e as ingredients in the adjustment of til
g terms of the partnership. If partner /
n unwilling to perform any very UNEQUAL ser
i vice without reward, he ought to stipulat
G that 1t be allowed him. In the absence O
7, such stipulation, it must be presumed tina
he is willing to render the service without
s remuneration. Parties assuming this re
n latlon are presumed to know the law an(
: to intend to be governed by it. unless thel
+ agree to be bound by some other rule. Il
S Is a mere question of degree. So soon as
Y the courts undertake, upon mere estimate
| OF apartments services, to award compen.
satlon In one case, they must do so in al
} others where the skill, labor and diligence
{ are unequally bestowed.
rms would be simply to abolish the rule
OF law, and to place the right of compen-
!, SaGlon not upon contract, but upon the
prlnclple OF quantum meruit. 1t will be
lOunQ. thet tho dootIiItO uf ncesI1y es,t MS
cases is, that compensation can only be
allowed where there is an cypress agree
ment to that effect, or one necessarily to
be implied from the conduct of the par
ties.
When these principles are applied to the
case in hand, what do we find VIM. Fra
zier not only did not make any agreement
with the parties that he was to have q sal
airy as managing partner, but by words and
acts expressly negatived the idea. When
the other partners urged the propriety the
necessity, and their wish to employ u per-
son to represent them in the management,
he violently objected, and said it was a
saving for him to be there, as he cost the
| concern nothing, and another person would
have to be paid. When one OF the co-part-
nerS was with him in the management, he
caused him to leave and said he didn t suit
the business, was Objectionable to guests,
or words of like import, and found the
presence of the widow Of the deceased
partner disagreeable, and brought about
her departure, saying he would brook no
divided responsibilities that there must
| be one head &c. How, then. could he ask
and receive at the hands of the circuit
court Il large salary of $3.50 per year fCr
attending to this business by himself, when
| he would not suffer any of his co-partners
| to take any part of the control OF manage
ment How, it may be asked, did he NAH
| age to obtain such an allowance from the
court, in the very face OF the law, in deli
ance of its plainest provisions that he
! was able to clear the place of everybody but
| himself, is q matter of some surprise, but
|
| keep them of and repel all interference for
so many years, is altogether incomprehen-
| sible ; and that i'll the face OF the exhibit
made by this record he obtained so large
| salary for so many years, and moreover,
obtained from the court and commissioner
| so large commission, is unexplained.
| But if in ordinary cases salary could
| be allowed a surviving and managing part
| ner, the circumstances OF this case would
L IA l. oh,
| Ii this managing partner had his family OF
| ten persons, servants, tutors, horses, &C.,
maintained all these years, how much sal
airy ought a Court of equity to allow such
a person? The counsel who argued this
case for the appellant estimated the cost
of supporting his domestic establishment.
at $50 900 for these fifteen years. Surely
it was most inequitable to add large sal
| airy of $2250 upon that. The Circuit Court
at one time seemed to be somewhat i'm
pressed with the hardship Of that salary,
and did actually deny the salary for two
| years, as we have seen, but then let 1t
stand for the remaining years. All this is
plainly wrong and IN violation Oh the well
| settled rule of law upon the subject and is
| held to be erroneous and must be reversed
and annulled.
| The allowance to the admr. of commits
| sions at five per cent. on $23, 059.21, Jan.
| 1st, 1866, and the allowance of five per
cent. on $31 ,S96.71 January lst, 1851, when
the admir-. had utterly neglected to settle
| his accounts, to file an inventory and APP
praisement and an account of sales, within
| the time required by law, is erroneous.
| In Turner VS.. Turner, LIST Graft, this
| Court said The court is of opinion that
| the claim of the appellee as administrator
of the said Benjamin James to commission
or compensation for his services in admin
| istering the estate of his intestate, was
| forfeited by his failure to comply with the
provisions Of the act and failure to settle
! his account, and for THIS error the decree is
reversed. @a
| In Morriss VS.. MOrriSs, 4 Graft. 293, it
was held that an administrator having
failed to settle his accounts, was not enti-
| tied to commissions.
| But it is entirely unnecessary to cite all
| thority upon this point. 1t is II plain stat
utory provision, and the cases are cited
only to show that it was error for which
| ,chen standing alone, this court would re-
| verse q cause.
! On the 18th OF July 1865, the admir- invested
! the bonds belonging TO the estate of his decc-
dent, in Confederate bonds, to the amount OF
| S20,0O0, $1,000 i'll Confederate seven per cent.
| bonds, and SIS, in Confederate cotton bonds,
| which were total loss to the estate. This was
approved by the Circuit Court. This investment
was not made by the order OF any court OF COM
petentjurisdiction nor by order Of any judge in
| W
| upon the administ rator's own motion, and APP
4 pears to have been under the circumstances OF
| this case injudiciouS and i'll advised. 1t does
not appear that the money could not be used to
| pay debts OF the estate nor OF the partnership,
| both of which owed debts, and indeed the record
| shows that after that time money of the same
| kind and more uepreciated, was actually used
| to in partpa the debts, ana therels no attempt
made to show that no use could have been made
| OF it F; and it appears on the other hand that 1t
| could have been divided among the parties who
| were in much need If this sort of money could
| be used TO pay the debts as late as the 18th of
| September, 1861, which wasdone, it devolves the
burden on The admir- to show that such use could
| not have been made of the same sort OF money
July 18th, 1863 and if this iduciary, without the
| authority of court or judge, took upon himself
| the responsibility OF making this investment iii
| plain violation OF the law, he must be held re-
/ sponsible to the estate for the money used by
| himself and cannot be allowed TO throw the loss
| upon the estate ofhis interstate. No court would
| have sanctioned such an investment ut the
| time it was made, and no court ought to sane
| ton it now. The circuit court erred in so de-
| Gliding.
| self used S2;5JO. Why not this IL payment to
himself, but by decree OF the court below it was
scaled long afterwards to 800 This was errone-
4 Gus he claimed to bea creditor; il was rs much
| a payment 10 himself as it would have been to
| any other person.
/ Upon the second assignment of error in the
| petition, it is charged that the administrator
| was allowed by the commissioners report q
| commission upon $47 900, due by himself to his
intestate's estate; that The circuit court over
| ruled the commissioner upon this point, but
| that by indirection the same result had been
brought about by the system of adyancements
which prevails throughout the account, from the
partnership funds
| 1t has been difficult to understand why the
| managing partner should so persSIehtly adj
| vance to himself large sums of money from the
partnership funds, and thus swell the enormous
| balances of collections or receipts each year
over and beyond all disbursements, and so APP
| pearing unnecessary, and at a casual observa-
lion apparently without reason or profit to him
self or to any other person. But upon a close
scrutiny of the question it seems that profit
/ might thus be made by this admir- in that way
If the charge should be SO made. Thus the admir-
advances SO much to himself, as admir-, from
himself as managing partner. thus swells the
balance due to himself indjUiduaLty at the end
of the year. as against his intestate's estate and
receives his commissions and interest accord
ingly as is repeatedly done in this case through
I out the adm + account. Then, to get this amount
back i'll December, 1851, for illustration it is en-
tered thus Overpdid. j. W. Frazer's estate
| $5373.66.
VIM. Frazier managing partner, in account
4 with j. L. Randolph, TO his dividend, $2399. 49,
and then it is tn us stated
Now, Randolph being the debtor Off. w. Fra
Tiers estate account of his purchase of the
one-fourth of the Rockbridge Alum and Bath
Alum properties, let him receive credit with
said estate for sum equal to the above stated
balance. In consideration OF which credit let
j. w. Erazier's estate be regarded as the owner
OF the said balance. Then let VIM. Frazier, as
admir- off. w. Frazier, receiue credtby the differ
ence between his over payment managing
| partner to ]. w. Fraziers estate, and said Ran
dolphs balance, TINT is for the sum OF $5373 So,
less $239992, that is for $973S4 and thuswill this
| years partnership be closed.
Dec. 3lSt, 1855, the next wear this operation is