{ "id": 5034153, "name": "Thomas A. Smyth v. Dennis D. McKernan", "name_abbreviation": "Smyth v. McKernan", "decision_date": "1891-06-25", "docket_number": "", "first_page": "132", "last_page": "137", "citations": [ { "type": "official", "cite": "41 Ill. App. 132" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "3 Paige Ch. 305", "category": "reporters:state", "reporter": "Paige Ch.", "case_ids": [ 2048356 ], "opinion_index": 0, "case_paths": [ "/paige-ch/3/0305-01" ] }, { "cite": "116 Ill. 292", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2886819 ], "opinion_index": 0, "case_paths": [ "/ill/116/0292-01" ] } ], "analysis": { "cardinality": 457, "char_count": 9618, "ocr_confidence": 0.562, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15495999959843218 }, "sha256": "62281cac888aa8580f7f2ede0f4dcc944995fb9e5778b99fb36854f5e95e1d58", "simhash": "1:3b45b4eb4c59e6b7", "word_count": 1550 }, "last_updated": "2023-07-14T16:42:40.256502+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Thomas A. Smyth v. Dennis D. McKernan." ], "opinions": [ { "text": "Waterman, J.\nWe are of the opinion that the record shows appellant had, up to the time of the tire, advanced over and above his contribution to the capital stock the sum \u00f3f $6,000, and that the company on the 30tlx of April, 1888, owed him that sum for advances to it, by him made. It is impossible to reconcile the testimony of appellee upon any other basis. He says that he consented to the placing of that sum at that date to the credit of appellant, and he does not claim that he asked or thought of having anything placed to his, appellee\u2019s, credit; yet manifestly, if $5,000 of the $6,000 credited to appellant represented his contribution to the capital stock, then some sum should have been credited to appellee for what he had given in toward the capital. He had transferred to the company his patents, and had received therefor eightv-four shares of stock of the liar value of $100 each; according to his testimony, this really, under the arrangement, stood as a contribution of $1,333.33 in money.\nAppellee was not an. ignorant man; he prepared and presented to the court below a statement of accounts as he claimed they should stand, and he has tiled in this court a brief, prepared, as he sa3rs, without the aid of counsel, which shows him to be entirely capable of understanding the significance of accounts and the meaning of debit and credit entries. He would never have consented to the entry of a credit of $6,000 to appellant, with nothing to his own credit, if he had understood that $5,000 of this credit represented only an amount paid for capital stock. Neither the bookkeeper nor appellee seems to have suggested or thought there was anything improper in the credit entiy to appellant, while each was intelligent enough to know that an amount paid for capital stock could not properly be credited to the holder of such stock and stand as an indebtedness of the company to him. The account was footed up on the books at $11,000, the sum appellee at the time suggested as the total loss by the fire, and thus the entries stood for more than a year, and until the company ceased to do business. It was only when this litigation was begun that appellee came forward, claiming that the total amount invested up to the fire was $6,000 instead of $11,000.\nWe agree with the chancellor in allowing to appellant interest upon his advances; the evidence warrants such allowance, and it is but equitable that interest should be paid upon advances, the benefit of Avhich the company has had; the interest we find at six per cent amounts to $761.04.\nThere is some doubt about the propriety of allowing to appellee anything for salary, but we are inclined tofolloAv the finding of the court below as to this, and also its action in disallowing appellant\u2019s similar claim.\nWe are of the opinion that the account ought to be stated as follows:\nAppellant should be credited Avith\nAdvances made before the tire........ $ 6,000.00\n\u201c \u201c .after the fire.......... 14,689.15\nJudgments paid............... 379.16\nSmall items......................... 75.00\nInterest on advances................ 761.04\nTotal credits to appellant.......... $21,904.35 Debit.\nTo cash received on sale.....$33,000.00\nAppellee should be credited with:\nSalary......................$1,438.00\nBills paid................... 47.77\nTotal credits to appellee... .$1,485.77\nAppellant\u2019s credits................... $21,904.35\nAppellee\u2019s \u201c ................... 1,485.77\nTotal credits of both parties........ $23,390.12\nDeduct this from $33,000 leaves........ 9,609.88\nFor division, one-third of Avhich should be paid to appellee, one-third is.... 3,203.29\nAdd appellee\u2019s credits................ 1,485.77\nMakes due appellee from appellant.... $4,689.06 with interest from the date of the filing of the bill of complaint.\nThis case having been heard in the court below upon exceptions to the report of the master, the presumptions as to the findings of the court upon the facts, made when the witnesses are brought before the chancellor and the testimony is heard by him, do not exist. Under the circumstances attending the hearing of this case, a court of review has the same opportunity as had the court below for arriving at a correct conclusion as to the facts.\nWhile it is the general rule that when exceptions to the master\u2019s report are sustained, the court should, by decree, settle the matters involved, and again refer the cause to the master to state the account as determined by the court (Beale v. Beale, 116 Ill. 292), yet where the exceptions sustained relate to but a few items, and the account to be restated is simple, and there are before the court sufficient facts to enable it to dispose of the cause without subjecting the parties to further expense, it may properly do so. In the matter of Homup, 3 Paige Ch. 305.\nThe decree of the court below is set aside and the cause remanded, with directions to enter a decree requiring the defendant below to pay to the complainant $1,689.06, with interest at six per cent per annum from the fifth day of September, 1889.\nSever sed and remanded with directions.", "type": "majority", "author": "Waterman, J." } ], "attorneys": [ "Messrs. Gibbons & Kavanaugh, for appellant.", "Mr. Dennis D. McKernan, pro so.." ], "corrections": "", "head_matter": "Thomas A. Smyth v. Dennis D. McKernan.\nPart 11 ership\u2014Disso lution\u2014Accounting.\n1. Upon a bill filed for an accounting in respect to certain alleged partnership transactions, the cause being referred to a master, whose statement of account was restated by the trial court upon the hearing of exceptions to the master\u2019s report, a decree upon said account as restated having been rendered, this court states the account and reverses the decree, and remands the cause with directions as to the decree which should be entered herein.\n2. While it is the general rule that when exceptions to the master\u2019s report are sustained, the court should by decree settle the matters involved, and again refer the cause to the master to state the account as determined by the court, where the exceptions sustained relate to but a few items, and the account to be restated is simple, and there are before the court sufficient facts to enable it to dispose of the cause without subjecting the parties to further expense, it may properly do so.\n[Opinion filed June 25, 1891.]\nAppeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.\nAppellant filed in the court below his bill for an accounting in respect to certain alleged partnership transactions between him and appellant. Appellant answered, denying the existence at any time of a partnership, blit expressed a willingness to account.\nThe cause being referred to a master, testimony was taken before him which, together with an account by him stated, he reported to the court.\nExceptions to this report were filed by both parties, upon the hearing of which the court restated the account and rendered a decree upon the account as thus restated, from which decree this appeal is prosecuted.\nIt appeared that appellee being an inventor and having certain patents for the manufacture of link belting, appellant became interested with him in the development thereof, and advanced money for this purpose until about April 1, 1887, when a corporation known as the Steel Key Drive Chain Company was organized for the manufacture of a steel key drive chain, the capital stock to consist of 250 shares of $100 each. Of this stock eighty-four shares were sold to appellee for his patents, and 165 shares to appellant for $3,333.\nMarch 28, 1888, all of the account books of the concern were destroyed by fire. Appellant and appellee, before opening a new set of books, had a talk, as the result of which, the bookkeeper, by direction of appellant, made the following entries:\nMdse. Dr. .. $11,000\nTo Thos. A. Smith\n\u201c Steel Chain Key Co............. 4,500\nTotal amount invested previous to the fire, March 28, 1888.\nProfit and loss acct. Dr... $11,000\nTo Mdse.................. $11,000\nRepresenting complete loss by fire, March 28,1888.\nAppellant says that when these entries were made, it was agreed between him and appellee that prior to the fire, he had advanced $6,500 above paying for his capital stock, and that that sum should therefore be placed to his credit. Appellee says that the sum of $6,500 represented the total investment made by appellant; that it included the $5,000 paid for his capital stock, and that he, appellee, only agreed to the sum of $6,000, which he declares was all that appellant at first claimed.'\nA portion of the account so stated by the master was of credits to appellant:\nAdvanced by Smith before the fire.... $ 6,000.00\n\u201c \u201c \u201c after \u201c .... 14,689.15\nJudgments paid by Smith............ 379.16\nSmall items \u201c \u201c \u201c ............ 75.00\n$21,143.31\nCredits to appellee:\nBills paid by McKernan.............. 47.77\n$21,191.08.\nAs stated by the court, the credits to Smith, appellant, were:\nAdvances to April 30,1888............ $ 2,166.66\nAfter fire...................\u2022........ 14,689.15\nJudgments paid...................... 379.16\nSmall items paid............ 75.00\nInterest............................. 531.00\nTotal.............. $17,840.97\nCredits to McKernan, appellee:\nBills paid.................... $ 47.77\nSalary....................... 1,438.00\n$ 1,485.77\nCredits to appellant and appellee.... $19,326.74\nThe difference between these accounts is in respect to three items:\nThe master found that the company owed at the time of the fire................ $6,000.00\nThe court fixed this amount at.......... 2,166.66\nThe court allowed appellant for interest 531.00\nAnd allowed appellee for salary........ 1,485.77\nThe master did not allow anything for interest or salary.\nMessrs. Gibbons & Kavanaugh, for appellant.\nMr. Dennis D. McKernan, pro so.." }, "file_name": "0132-01", "first_page_order": 128, "last_page_order": 133 }