
    Henry B. Blanchard and Adelaide B. Goodman, as Executors, etc., of Theodore A. Blanchard, Deceased, Respondents, v. Susan Jefferson, Individually and as Executrix, etc., of John J. Jefferson, Deceased, Appellant.
    
      Valuation of blocks and rollers used in manufacturing wall paper..
    
    Where, upon, an appeal from a judgment entered upon the trial of an action brought to procure a partnership accounting, it appears that the method adopted for valuing old blocks and rollers used in the business of making wall paper, which by annual changes in styles lost the greater part of their value at . the end of each year, was not less favorable to the appellant than that which she, herself, proposes, the judgment will be affirmed.
    Two methods of arriving at such values, considered.
    Ingraham and Barrett, JJ., dissented.
    Afpeal by the defendant, Susan Jefferson, individually, from a ■ judgment of the Supreme Court in favor of the plaintiffs, .entered in the office, of the clerk of the county of New York on the 25th day of February, 1896, upon the report of a referee.
    
      John L. Hill, for the appellant.
    
      Charles E. Hughes, for the respondents.
   Williams, J,:

The action was brought to recover a balance alleged to have been owing by defendant individually to plaintiffs’ testator, Blanchard, growing out of the following facts: The defendant was the wife of John J. Jefferson, who, in his lifetime, was. engaged in the wall paper manufacturing business. Blanchard and one De Lieuw were employees of Mr. Jefferson in that business during his lifetime. Mr. Jefferson died in November, 1868, leaving a will in which the defendant was named as executrix. January 1, 1869, the defendant, Blanchard and- De Lieuw, entered into a copartnership, and continued the business of the late Mr. Jefferson until December 31, 1873, when De Lieuw retired, and the defendant and Blanchard entered into copartnership under a written agreement to continue the business for five years from that time. The defendant was to contribute as cash, ca¡3Ítal $66,309, and Blanchard $13,370, these being the amounts standing to their credits respectively upon the closing of the books of the former copartnership. The profits were to be divided equally. Blanchard was to conduct the business, but was to consult with defendant in cases of importance. Defendant was permitted to draw annually $3,600, and Blanchard $2,500, from, the business. The business was carried on under this agreement for the five years, and until January 1, 1880. Blanchard acted as general manager and kept the books, and among them the ledger upon which the personal accounts of the partners appeared. Four sons of the defendant were employed in the business, one of whom assisted in keeping the books, but Blanchard alone had charge of the ledger. During the seven years this copartnership continued, the accounts were closed at the end. of each year, and the profits or losses,.in equal proportions, were charged or credited to the partners respectively. The accounts were so closed up at the termination of the copartnership December 31, 1880, and there was then standing to the credit of Blanchard the sum of $14,651.92, as his share or interest in the business. Thereafter the business was continued by the defendant individually, she taking all the assets, and employing Blanchard at a salary of $3,000 as manager. This relation continued until June 30, 1887, when Blanchard retired. During all this time Blanchard acted as sole manager of the business, and kept the books with the assistance of one of the defendant’s sons; but Blanchard alone had charge of the ledger. On January 1, 1881, Blanchard opened an account with himself upon defendant’s books, and credited himself with the sum of $14,651.92, balance stock, account, which was the amount taken from the ledger of the copartnership upon closing of their accounts. In this new account Blanchard also credited himself at the end of each year with his salary, $3,000, and semi-annually with interest on the stock balance, or on a lesser amount, and charged himself, with the several amounts taken or drawn out by him from the business, simply stated in the account to be cash. During the whole time the amount of cash drawn by him exceeded the amount of his salary by $2,722.42, which was not, however, a sufficient amount to balance the interest charges in the account. Blanchard died in March, 1891, and in November, 1891, this suit was commenced to recover the balance of this account and interest, $16,845.06. The defense was that the Statute of Limitations had run against any claim made for the stock balance of $14,651.92, and that this amount as entered upon the books was in any event too large; and it was also sought to recover back the amount overdrawn by Blanchard, $2,722.42, and interest.

One of the questions arising on this appeal is. whether the stock balance entered ujion the books of the copartnership as a credit to Blanchard was too large as a matter of fact. Upon the trial some errors of computation were discovered, and plaintiffs made no objection to the corrections being made* on account thereof, by reducing such balance $78.39. The referee found no other errors in the account.

It was claimed at the trial, and is mow claimed here, that there was another .serious error in making up this balance by reason of an improper allowance for blocks and rollers. The blocks and rollers were wooden cylinders upon which the printing of the wall paper was executed.. The seasons of wall paper manufacture began in the summer, July, and extended until the following summer, July. New blocks and rollers were required every year, containing new patterns, and the old blocks and rollers were substantially of no value. Inventories were made each year, as of January first, and in each inventory the blocks and rollers contained in the inventory of the- preceding year were brought forward and inserted in the new inventory at a valuation amounting to eighty per cent of their valuation in such preceding inventory, and the blocks and rollers made during the year, and since the preceding inventory was made, were inserted in the new inventory at a valuation equal to their actual cost. In making up the merchandise account each year the amount of the inventory of the preceding year was entered upon the debit side of the account, and the amount of the new inventory was entered on the credit side of the account. The balance of the merchandise account was carried into the profit and loss account, and the balance of the profit and loss account was carried into the account of the copartners, which showed the stock balance of each copartner. It is said that this rule, as to the valuation of the old blocks and rollers, was erroneous, and, therefore, the balance to the credit of Blanchard at the close of the copartnership was too large. The claim made is that the entire amounts in the various inventories for old blocks and rollers should have been left out, and the new blocks and rollers made during the year preceding the inventory should be valued, not at their real costs, but, the year being half gone, at onelialf such cost. This would be fair. These blocks and rollers had then been in use one-half a year — from the July before — were still in use, and would remain in use for another half year, until the following July. An examination of the figures, however, shows that this system of keeping the accounts would have been more favarable to the plaintiffs than the one which was actually adopted. Take the account as made up in January, 1875, strike out of the inventory then made the 80 per cent of the old blocks and rollers, $6,514, and one-half of the valuation of the new blocks and rollers, $1,821, and the new inventory will thus be -reduced in all $8,335. When this inventory is then carried into the merchandise account, the credit side of that account will be reduced by this amount. Leaving out of the merchandise- account the valuation of the old blocks and rollers, taken from the inventory of the preceding year, will reduce the debit side of the merchandise account by the sum of $8,142. So that the net credit balance of the merchandise account in this year, to be carried to the profit and loss account, would be $193, less than appears by the books as they were kept. This change would be favorable to the defendant. And again, in 1876, the 80 per cent was $8,125, and one-half new blocks and rollers, $2,100, making total deduction in new inventory $10,225, while the total for old blocks and rollers by former inventory was $10,156, showing a net reduction of the credit balance for this year to be $69. This would also be favorable to the defendant. But in every succeeding year during the existence of the copartnership the balance would be the other way. In 1877 the. 80 per cent was $9,860, and one-half. the new blocks and rollers $2,000, making total deduction in new inventory $11,860, while the total for old blocks, and rollers by the former inventory was $12,325 ; - that would show an increase of the net balance to be carried to the profit and loss account of -$465. In 1878 the 80. per cent was $11,088, the one-half new blocks and rollers $2,000, making a total of $13,088, while old blocks and rollers in former inventory Were $13,860, showing an increase of net balance of $772. In 1879 the 80 per cent was. $12,070.40, one-half new blocks and rollers $2,350,‘making a total of $14,420.40, while old blocks and rollers in former inventory were $15,088, showing ail increase of net balance of $667.60. In 1880 the 80 per cent was $13,416.32, one-lialf new blocks and rollers $2,185, making a total of $15,601.32, while old blocks and rollers in former inventory were $16,770.40, showing an increase of net balance of $1,169.08. And, in 1881, the 80 per cent was $14,228, one-half of new blocks and rollers $3,200, making a total of $17,428, while old blocks and rollers in former inventory were $17,785, showing an increase of net balance of $357. So that it is literally true, as stated by the referee, that the new system of figuring would be more favorable to the plaintiffs, and would show a greater stock balance to Blanchard’s credit January 1,1881, than did actually appear, upon the books as he kept them, and this without changing the figures of the last year from eighty to fifty per cent for the old blocks and rollers, as was done. We cannot change the stock balance to Blanchard’s credit January 1, 1874, in any event, because that amount was expressly agreed upon ■ in the letters of copartnership. We have seen that the accounts as kept thereafter, during the time of the copartnership, were fully as favorable to the defendant as the facts warranted. The amount of stock balance,' therefore, to .Blanchard’s credit January 1, 1881, 'was not larger than it should have been.

The remaining ■ questions in the case were discussed very fully and fairly by the referee in his opinion. We fully agree with him as to the conclusions at which he arrived, and can add nothing valuable to the suggestions made by him.

We think the judgment should be affirmed, with costs.

Rumsey and O’Brien, JJ., concurred; Ingraham and Barrett, JJ., dissented.

Ingraham, J.

(dissenting):

The complaint sets up two causes of action, the first' of which presents the substantial question to be determined here. Thereby the plaintiffs seek to recover the amount due to the plaintiffs’ testator from the defendant at the termination of a copartnership which existed between them and which was dissolved on the 31st day of December, 1880. Prior to the commencement of that copartnership the parties to this action had been members of a copartnership, composed of the plaintiffs and the defendant and a third party, which was dissolved December 31, 1873, and a new copartnership formed which continued the business. The copartnership articles recited that plaintiffs’ testator contributed as capital to the new copartnership $13,307, and that the defendant contributed to the new copartnership $66,309, these two amounts being the amount standing to their respective credits upon the books of the former copartnership, this new copartnership continuing for seven years, until the 31st day of December, 1880, when the copartnership was dissolved, the defendant taking the business and continuing it in her 'own name. When the books were balanced at the termination of this copartnership there appeared to the credit of the plaintiffs’ testator $14,651.92, and this action is brought to recover that balance, less several payments alleged to have been received by plaintiffs’ testator on account thereof. There is no evidence of any express agreement between the copartners at the time of the dissolution of this firm, no evidence of an accounting as between them, and no evidence as to the actual value of the property taken possession of by the defendant at the time of the dissolution of the copartnership. It appears, however, that upon the dissolution of this copartnership plaintiffs’ testator continued as general manager of the business which was thenceforth owned by the defendant, keeping the books, having sole charge of the business, drawing checks, paying bills, making purchases, being generally the only one in charge who had knowledge of the business, and who was responsible for its management. From December 31, 1880, until the plaintiffs’ testator withdrew as such manager in the year 1887, the books of the business were continued by the plaintiffs’ testator.' He opened an account in his own name, crediting himself with this amount which appeared upon the old books as the balance due him upon the termination of the copartnership, crediting himself with his yearly salary as manager, and with one or two sums which he contributed in cash, and charging himself with the various amounts which he drew from the business during that period. No objection was made by the defendant to this method of procedure, but during all that time it does not appear that there was ever an account rendered to the defendant by the plaintiffs’ testator, or by any one, of the condition of the business, or of the nature of these accounts, the defendant relying entirely upon the plaintiffs’ testator and receiving such sums of money from the business as were necessary for her support. It is claimed by the plaintiffs, and I think correctly, that, from the conduct of the parties, an accounting between them by which there was due to the plaintiffs’ testator- the sum appearing on the books to his credit, and which, in the absence of fraud or mistake, he would be entitled to recover, could be presumed. If, however, the defendant could show that, this amount was not actually due upon the termination of the copartnership; that, at that time, as between the. parties, a much smaller sum was really due, I think it clear that the defendant would have been entitled to an- accounting of the copartnership transactions in which could be determined 'the amount wh-icli was actually.due to the plaintiffs’ testator. The facts shown upon the trial, and which were uncontradicted, satisfactorily proved that the defendant, who was an aged woman, without business knowledge of any kind, having succeeded to this business upon the death of her husband, had no actual knowledge of the condition of these books; was never at any time informed that there was any sum of money due to Blanchard, or that he claimed anything from her; that he was her trusted agent 'and manager, familiar with' the business and its details, carrying it on without consultation with her, drawing all checks, making all purchases, conducting the manufacture of the goods, selling the goods so manufactured, having entire charge of the defendant’s interest, and keeping the books himself without communicating their contents to any one. It is quite true that the defendant’s sons were employed in the business, one of them being employed in keeping some of the books, but the books containing these accounts of Blanchard themselves show that, during the period from the commencement of the copartnership down to the time that Blanchard left the defendant’s employ, they were exclusively in his handwriting, all entries' made by him, and no statement of the accounts was submitted by him to-his principal, the defendant. The presumption of an account,, under these circumstances, cannot be said' to be a strong one, and. will yield very readily to proof that the accounts did not represent the real interest of the parties in the business at the time of' the dissolution of the copartnership. The relation which existed: between Blanchard and the defendant was that of the strictest, and most implicit trust and confidence. She received from the business such an amount as he chose to send her, leaving the entire management and control of it to him; and such entries in the books in his own favor, uncommunicated to the defendant, should be received with very great caution as establishing any claim on his behalf as against her. Assuming, however, that after this lapse of time, such entries did establish a prima facie case which would justify a recovery against the defendant, she was certainly .entitled to prove that these entries- made by Blanchard were erroneous and did not show the exact condition of the affairs of the business at the time of the dissolution of the copartnership, and that as a matter of fact there was at that time less actually due to Blanchard from the business than appeared from the account. The defendant assumed this burden upon the trial, and the books containing entries of the copartnership affairs from the time of the formation of the copartnership were introduced in evidence with inventories made by Blanchard, showing the condition of the business at the end of each year. It appeared from the inventory of January 1,1874, that the stock on hand, including machinery, blocks and rollers, was valued at $49,238.82. The machinery was valued at $12,830, the blocks; cut prior to January 1, 1873, were inventoried at $6,196.28, and the blocks cut during the year 1873 were valued at $1,946.73. Thus, the blocks and rollers were inventoried as of the first of January of that year at $8,142.45. It is quite apparent that the interest of Blanchard at that time in this business depended upon a correct value being placed upon this inventory of the machinery, blocks and rollers used in this business. The parties, however, having by their copartnership articles fixed their proportion of this interest, we will assume that, at that time, the property was of the value stated. Under the copartnership articles the parties were to divide the profits equally. The inventories of the succeeding years show that, in regard to these blocks and rollers, the amount found to be the value of the blocks and rollers on hand at the end of each year was ascertained by taking the value as appeared upon the preceding inventory, and from that deducting twenty per cent as the deterioration during the year. To that was added the amount paid for new blocks and rollers cut during the year. Thus, two amounts together were inserted as the value of the blocks at the time of taking the inventory. Thus, the inventory of January 1,1875, fixed the then value of such blocks and rollers by taking the sum of $8,142, being the amount of the inventory of January 1, 1874, at which the blocks were valued; twenty per cent was deducted and to it was added the sum of $3,642, being the sum paid for new blocks during the year 1874. The blocks then on hand, January 1, 1875, were stated to be of the-value of $10,156. This was credited to the merchandise account as the value of the stock which, on the 1st of January, 1875, was fixed at $49,708.70. .This-practice was continued each year until the close of the copartnership, December 31,1880, when the inventory showed that the blocks and rollers were valued at $20,682, being an increase of $12,486. The merchandise account was kept as follows: At the beginning of each year there was charged to it the balance of the merchandise account of the preceding year, which represented the value of the merchandise on hand including the machinery, blocks and ■ rollers, valued as before stated. On the last day of each month there were credited and charged the accounts and cash received and paid out during the month, and on December first there was credited the amount of stock on hand, including merchandise, machinery, blocks and rollers, as its value appeared by the new inventory made. up at the end of each year, and the balance of this account was then credited to profit and loss. Thus, in each year the difference between the amount found as the value of the' blocks and rollers over that of the preceding year, i. e., the increase of the value of these blocks and rollers would increase the balance to the credit of the merchandise account, and thus increase the amount of the profits to be credited to each of the partners. The merchandise account for the year 1874 is printed in full in the case. On January 1, 1874, the amount charged to stock was $49,232.82, and by turning to the inventory of January 1, 1874, it appears that this was the amount that the inventory showed to be the value of the stock on hand at that date. On December 31, 1874, there was credited in this account to stock $49,708.70, and on turning to the inventory of January 1, 1875, which includes the value of the machinery, blocks, rollers, etc., it will be seen that this is the amount as appeared by that inventory, including s.uch machinery, blocks and rollers of the stock on hand then. For the year 1874 the balance of that account was credited to profit and loss, showing a profit during that year of $26,231.87. The profit and loss account was made by crediting it with this balance from the merchandise account, charging to it sundry accounts that were marked ofi as not collectible, the expenses of the business during the year, and dividing the difference between Blanchard and the defendant. Thus, in each year was credited to Blanchard one-half of the increase of the value of the machinery, blocks and rollers as inventoried on the first day of January, so that at the end of the copartnership, December 31, 1880, when the books were made up, this amount then due upon the books to Blanchard was based upon the fact that the old blocks and rollers made between the 1st of January, 1874, and the 31st of December, 1879, ■ were worth $14,228. Now the evidence shows conclusively that the blocks and rollers then in use, with the exception of those that were made for the current year, were of no substantial value, at that time. The evidence of the defendant and others in the wall paper business shows that the method of the business during all this period was as follows: The business year commenced in September and lasted until the following May. During the summer the blocks and rollers for the printing of the wall paper were, made, and were used during the succeeding year, beginning on the first of September. At the end of that business year, in May, the blocks and rollers were discarded, new ones being made for the following year, though in some cases when a roller was fifteen inches or over in diameter it was cut oyer and used again the following year; but even then it was substantially of no value, or only of the value of a new block of wood costing from fifty cents to a dollar. These blocks and rollers were never used for two successive years, as each year the style of the wall paper changed so that in all of the other large houses it was customary to charge off at the end of each year the cost of the blocks and rollers used for that year as an expense, not considering them at the end of the year óf any value. It will thus be seen that, at the close of the year 1880, Blanchard had been credited with one-half of the increase of the value of these old blocks which were valueless. The amount at which they were valued was $6,085.55 ; and one-half of that, being $3,042.77, should be deducted from the amount that appeared in the books to be due to him at the time of the termination of the copartnership.

It also appeared by the'inventory that the blocks and rollers cut in 1880 were valued at $6,400. This inventory was taken as of January 1, 1881, and the season was then more than half ended. These blocks had been used for more than half a year. They were valued in each of the inventories at their cost, and thus the plaintiff was credited on the dissolution of the firm with one-lialf of the total cost of the blocks which had been used for more than six months. As the life of these blocks — if that term may be used — lasted only until the end of the business year, which would be in May, 1881, it would be manifestly unjust, in a transfer of these blocks to the defendant, to compel her to pay for them' the f till cost,, as the business had the use of the blocks for more than one-half of the year, and Blanchard had been credited with his share of the profits realized from them during that period.

• There is evidence in the case which would justify a finding that on the first of January of each year the blocks which had been cut for use for that year were -worth about one-half of their cost value; that is, a fair estimate of their then value would be one-half of their cost at the beginning of the business year. So the defendant should have been charged as of the value of the blocks cut during the year 1880, one-half of their cost instead of .their full cost. Such one-half of their' cost would be the sum of $3,200 instead of $6,400, as charged in the account; and as one-lialf of this excess, namely, $1,600, was credited to Blanchard, that amount should also be deducted from the balance due him on the books. There should, therefore, be deducted these two amounts, aggregating $4,642.77, from the sum of $14,651.92 as due to. Blanchard January 1, 1881, leaving due to Blanchard, as of that time, the sum of $10,009.15.

The learned referee, in his opinion, seems to assume that the expenses incurred in making the new blocks and rollers were included in the expense account, although he says that there was no evidence to show either that they were or were not. It seems to me that in this he overlooked the fact that in the inventory made up in each year, which is the basis of the amount with which the merchandise account is credited as the stock at the end of the year, the expense of cutting, the new blocks is included so as to increase by such expense the value of the stock credited to the merchandise account; and there the credit to Blanchard was increased each year by the increase in the stock account caused by the increased value placed upon these blocks and rollers, which were in fact valueless.

We have carefully examined the testimony, but do not think the defendant has established any other error in the account which would justify us in directing any further credit to her. There was some evidence as to the deterioration of the machinery each year, but there is nothing to show that' such deterioration was not allowed for in the inventory as made and entered in the books; nor does it appear that the amounts charged off for bad debts should, at the time, have been larger. As to the remaining questions in the case, we think the referee has correctly disposed of them in his very satisfactory opinion, and that a further discussion is unnecessary.

The judgment should, therefore, be modified by deducting from the amount found due to Blanchard on the 1st day of January, 1881, the sum of §4,642.77, and as modified, affirmed, no costs of this appeal to be allowed to either party.

Barrett, J., concurred.-'

Judgment affirmed, with costs.  