Wheatley v. Wheeler

Bartol, C. J., delivered the opinion of the Court. The appellants were co-partners carrying on business in Baltimore, under the name of Wheatley, Dorsey & Co., and on the 1st day of July, 1864, articles of co-partnership were entered into between them and the appellee, whereby a firm was created “under the name and style of George Wheeler, for the purpose of carrying on the milling business at Laurel, Pi’ince George’s County, and a general commission and trade business under the same name and style in Washington city.” This partnership was to continue till the 30th day of June, 1865. The course of business of the firm of George Wheeler as provided for by the articles and actually carried on was as follows : the house of Wheatley, Dorsey & Co., in Baltimore, purchased grain which was sent to the mill of the appellee, at Laurel, to be ground for market; and the flour and other products were sent for sale to the house in Washington, or the house of Wheatley, Dorsey & Co., in Baltimore. This latter house also purchased for the firm of George Wheeler quantities of hay which was sent to be sold by the house in Washington. ⁶⁴ Among other stipulations it was agreed that the firm of Wheatley, Dorsey & Co., “should be allowed by the firm of George Wheeler, the sum of twelve hundred dollars for clerk hire, porterage, and the use of their warehouse in the conduct of the business of the firm of George Wheeler, in Baltimore.” And it was further stipulated that “all parties to this instrument are to have free access to the books of said firm of George Wheeler wherever said books may be — whether in Washington, at Laurel, or in Baltimore, at the counting-house of Wheatley, Dorsey & Co.” It was declared to be the intention of all the parties “that both the milling business at Laurel, and the commission and trade business at Washington, are to be considered as one business, for the purposes of the partnership of “ George Wheeler.” That the expenses of both businesses are to be charged to the general expense account of the house or firm of George Wheeler; and that “after the expenses of carrying on the firm of George Wheeler shall have been first deducted, the profits are to be divided in the proportion of three-eighths to George Wheeler, and five-eighths to Wheatley and Dorsey, the respective parties of the first and second part to the articles.” After the co-partnership thus formed had expired, the appellee filed his bill for an account of the business of the firm.

A decree for an account was passed, the cause was referred to the auditor, proof was taken, and agreements of counsel were made, which it is not important now to refer to more particularly. By the final account stated by the auditor, in accordance with the decision and direction of the Superior Court, the balance found due from the" appellants to the appellee was $1,413.05, and from the decree ratifying the account and ordering the said balance, with interest thereon from the 16th of September, 1865, to be paid by the appellants to the appellee, or to be brought into Court to be paid, this appeal was taken. The only ground upon which the appellants ask for a reversal of the decree, is for an alleged error of the Court below ⁶⁵ in refusing to admit in evidence the books of account kept by the house of Wheatley, Dorsey & Co. It was virtually conceded in the argument, and indeed is manifest from the record, that unless these books were competent and admissible testimony against the appellee, or the entries therein are established by extrinsic proof, there remains no good cause for reversing the decree in his favor for the sum ascertained by the auditor; the decree being abundantly supported by the other proof which would have justified a decree for a larger sum. We think it very clear that the books were inadmissible, and were- properly excluded from the consideration of the auditor.

It is, undoubtedly, the general rule,