Hunt v. Stuart

Miller, J., delivered the opinion of the Court. The controversy in this cause which at first assumed a broader scope has been narrowed down to the question whether the appellant is entitled to recover from the appellee the sum of $852.16, which he alleges was paid under a mistake. It appears these parties had for some years been partners in the wooden-ware business. Early in 1872 a dissolution of the partnership was contemplated and steps to that end were taken which culminated in an agreement signed by both parties and dated the 17th of February, 1872.

By this it was agreed that Hunt should be the purchaser and Stuart the seller ; the stock of goods was to be taken and also the debts due the firm; the liabilities and bad debts were to be deducted and the individual accounts of the partners were to be settled ; the partner buying was to pay the outgoing partner what was due him, and the outgoing partner retained a half interest in the bad.debts; Hunt, the buying partner, was to have ten per cent, on the debts due to tbe firm to defray the costs and risks incident to their collection, which was to be taken into the calculation in ascertaining the condition of the individual accounts. Two accountants, one selected by each party, were then called in, who examined the books of the firm. ²²⁸ and tlie individual accounts of the partners, and ascertained there was due from Hunt to Stuart, according to the terms of this agreement, the sum of $258é.27. This sum was duly paid to Stuart by Hunt, on the 27th of February, 1872. On the preceding day notice of the dissolution was published and Stuart .executed an assignment to Hunt of all his interest in the assets and property of the firm,.of every kind and description including book-debts, dioses in action, and accounts.

This assignment also states that it is distinctly understood as part of the consideration therefor, that Hunt shall pay all debts of the firm promptly at maturity. These facts show a final settlement between the parties and we do not understand that this is now disputed. But Hunt insists the accountants made a mistake in the ascertainment of the amount due, in consequence of which he has made an over-payment of $852.16, and he now asks a Court of equity to compel Stuart to pay back this sum with interest. We are all clearly of opinion he is not entitled to relief.

First. There has been great delay in asserting the claim. In all cases of mistake Courts of equity require the injured party to take steps to obtain relief promptly, and, if he has been guilty of ladies they will not listen to his complaint. Beard vs. Hubble, 9 Gill, 420 .

The complainant knew of the alleged mistake shortly after the money was paid, for as early as the lltli of March, 1872, Barker, his accountant when the settlement took place, at his request addressed a letter to Stuart, in which he says Hunt had called his attention to an error made in the settlement by which he (Stuart) had been overpaid $977.70, and he then states how the mistake occurred. Hunt testifies that the day after this letter was written, Stuart called on him in response thereto, and promised that if there was any error he would correct it, but Stuart in his testimony denies that he ever made any such promise. After this nothing whatever was done until Hunt filed the ²²⁹ bill in this case on the 16th of Eehruary, 1875. In that hill he does not rely upon this mistake, and makes no mention of it.

He simply charges that Stuart had failed to settle the partnership matters in accordance with the terms of the agreement of the 17th of Eehruary, 1872, and prays that the partnership may he dissolved; that an account of its business may he taken under the direction of the Court, that its effects may he applied to the payment of its debts and liabilities, and the residue distributed to the proper parties. The answer which was promptly filed relies upon the settlement of Eehruary, 1872, as final, and avers that the partnership was then dissolved, and its affairs closed and adjusted. The testimony of Hunt and Barker was then taken under a commission, and it was not until the 15th of October, 1876, that a special replication to the'answer was filed in which the complainant, for the first time, charges that there was an error in the accounts on which the settlement was made,