Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-06-11
OPINION BY-BELRNAP, {. j..

OPINION BY-BELIINAP, {. J.
This is a suit for an accounting between :
partners in which each demands a balance
due from the other. The partnership was
formed on the Doth day of September, 1880.
and continued until the 9th day of May,
1890. when it was dissolved. Its business
was that of contracting for the cutting of
ord wood and logs. and the saving of
timber, to which the business of mer-
chandising was subsequently added
They We're equal partners. The District
Court ordered Judgment in favor OF res
pendent for the sun of S65f0,49. From
the judgment and an order refusing anew
trial, defendant has appealed.
The assignment Of errors will be CON
sidered seriatim.
1st.-Wells. Fargo & Co. Account.
Between February oath, 1883. and the
month of October following, checks ag-
gregating the sum OF $4,000 were drawn
upon and paid by the banking house of
Wells, Fargo & Co. of San Francisco of
which the books of the firm made no
mention.
Appellant contends that respondent is
chargeable with this amount upon the
theory that he drew the checks. Conced-
ing, for the purpose of the case. that res
pOndent drew the checks - although the
District Court expressly failed to find the
fact - it does not follow hat he is respon-
sible to appellant for the amoun During
the business season of each year, the firm
employed a boOk-keeper whose duty it
was to correctly keep the books and &C
counts. This person was not the servant
of the respondent only, but Of the firm.
and any errors or mistakes III de by him,
were not chargeable to one member of the
firm only, unless under special circum-
stances not existing here.
2nd.-Herbert Account.
In the mont of August, 1889, appellant
received the sum of $4,000 il part pay
ment of an account against one Herbert.
The amount was credited to the account
and cash debited on the journal and petty
ledger. Appellant contends h respon-
dent should be charged with the sum.
The failure to properly charge these pay
ments, may be attributable to some limo
cent cause, as no suggestion Of improper
conduct has been limited at. Respondent,
as before said, annOt be charged with
mistakes which may have been made in
bookkeeping.
3rd.-Falenzuela Account.
The firm sold goods to Valeuzuela and
sustained a loss of about Sl250.00 upon the
account. 1t is claimed by appellant that
Folsom agreed with Marleite that the
goods ShOuld not be sold to the debtor
without a guarantee of Il third parry for
the payment of the ccOun and that at
terward the goods were sold without such
guarantee, and a loss occurred in conse-
quence.
This contention is answered by the fact
that the testimony is directly conflicting,
and the District Judge, by disallowing tie
claim, must implicitly have found in favor
of respondent upon this point.
4th.-RespOndent paid 10 the creditors
of the firm, after it hai discontinued bust
ness, a short time prior to its dissolution
the sun of $l6,747,72. Tne District Court
allowed interest upon this sum amount
ing to the sum Of $7224.06. The money
thus paid is properly treated as an al
vancement for the benefit of the firm.
Lindley, i'll his work upon Partnership
says: An advance by II partner to Il firm
is not treated as an increase of his cdpi-
tai, but rather as a loan, on which Interest
ought to be paid: and by usage, interest i
payable on money bona ii lie advanced BY
one partner for partnership Il
least when the advance is made with Tx
knowledge of the other partners" Vol
], p. 800.
The propriety of this charge admits O
no question. The firm had no capital. Il
had been in the hab of paying interest al
its bankers upon overiraits for a long
time. Appellant has not sIg .ested in his
testimony that this lone was not ad
vanced will his knowledge and acuuies.
cence. Under these circumstances, the
charge of interest is equitable.
Baker vs.. Mayo, i29 Mass. 5l7.
Morris VS.. Allen, ii n. j.. CT. A.
Berry VS.. Folkes ct al, 90 Mass. 576.
Collender VS.. Phelan, 70 N. Y. 500.
5th.-On or about the 18th day of July,
1889, respondent, with CONSENT of appel
liant, appropriated certain personal prop.