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tent under the exact physical conditions set forth in the contract, nor were they ever tested under an exact 15-foot or 18-foot head by any kind of test.

Appellants failed to make a test which was expressly provided for by them, to be made before installation, which it appears would have given some definite assurance of a fulfillment of warranties or otherwise after installation. And after installation they made no such test as shows a breach of the warranties.

was ever subjected to any test. But this test, if made, is not found to have been a standard or recognized one, or one permitted under the contract, nor is it found that it was an accurate test. The accompanying facts not only fail to show its accuracy, but on the contrary tend to discredit it. It is found that there never was any measurement by any approved device of the volume of water available at the dam, or the water used by any of the turbines; that the readings of the power generated were taken from the switchboard after the power had been [10] Furthermore, the finding, while it developed through electrical generators, re- states that the turbines did not show an duced by transformers attached thereto, and efficiency of 75 per cent. as warranted wholly thence transferred to a switchboard from fails to show the extent of the deficiency in which the readings were made and in this the per cent. of efficiency. In this respect it test one of the generators was run as a mo- is too uncertain upon which to base any tor and another as a generator. None of certain amount of damages. The finding as these electrical instruments, including the to the shortage in horse power as found is, measuring devices, were found to be ac- obviously, 13 per cent. of that which the turcurate, but, on the contrary, it is found that bines were warranted to produce. In fixing two of the three generators used had broken the amount of damages it is apparent that down and required rewinding which was the trial court added to the contract price done prior to the test of June, 1904, and of all the articles involved in the contract were not afterwards tested as to their ef- of sale, both "Exciter Line Turbines" and ficiency. And it is also found that the ac- "Generator Line Turbines" and their apcuracy of other electrical instruments used was shown either immediately before or after the readings were taken which disclosed the result of the test. These measurings and readings were made by employés of the operating company and not by either appellee or appellants. It is found that the only basis of all statements as to power of the turbines is the result shown by the power generated through the electric generators above referred to. This, we think, falls short of showing with sufficient certainty even an accurate electrical test and it certainly does not meet the test provisions of the contract as shown by the findings of the court. Under the circumstances shown it

purtenances, the amount expended by appellants in the installation, and fixed the damages to appellants from the alleged breach of warranty as to horse power of the "Generator Line Turbines" at 13 per cent. of the sum of this addition. The correctness of this method of measuring such damages is vigorously assailed by counsel for appellee, and price of certain of the articles about which justly. The per cent. is calculated on the there was no controversy, the "Exciter Line and the cost of installing all. Manifestly if Turbines," as well as those in controversy, the percentage method were permissible at all, the application of it in the manner here

made would be wrong. There was no finding of the value of the "Generator Line Tur

ranty in the sale of machinery is the difference between the value of the machinery delivered and the value of such as would have complied with the warranty, and the contract price is prima facie the latter value. Street v. Chapman (1867) 29 Ind. 142; Booher v. Goldsborough (1873) 44 Ind. 490; Hooper v. Story, supra; Parker v. Fenwick (1905) 138 N. C. 209, 50 S. E. 627; 35 Cyc. 468 to 470: Beach on Contracts, § 291.

would be as reasonable to use the turbines bines" delivered. It has been held in a to test the generators as to use the gener- similar case that this method of ascertainators to test the turbines. It appears from the ing the damages is purely speculative and not findings that appellee had, prior to the mak-permissible. Hooper v. Story (1898) 155 N. ing of the contract, refused to sell its tur-Y. 171, 49 N. E. 773. The usual rule is that bines with any guaranty depending upon an the measure of damages for a breach of warelectrical test to show its fulfillment. The contract as made does not provide for an electrical test, and the only test the character of which is specifically named therein is one which the finding shows to be a mechanical brake test. This the appellee persistently claimed from the beginning, and when differences arose over the test and appellee had refused to accede to an electrical test appellants received and installed the third and fourth units. We think appellants were bound to show by a mechanical test a failure of the turbines to fulfill the warranty. Such a test the court finds was never made and their power never ascertained by or through any such test, and, further, that the turbines either in whole or in part, were necessary.

Numerous other questions are raised by appellee under its assignment of cross-errors which have all a relation to the main contention that the second and third conclusions of law are erroneous, but the conclusion reached makes an examination of them un

against appellee in stating the second and death of the partner having been allowed as a third conclusions of law. credit.

The first conclusion of law, which awarded

appellee the sum of $12,804.45, was based on the finding that there was due appellee on the purchase price a balance of $9,871.25, to which was added interest from the dates when the payments under the contract were due to the date of the finding, which amounted to $2,933.20. The judgment is reversed on appellee's assignment of cross-errors with instructions to the lower court to strike out its second and third conclusions of law and to render judgment in favor of appellee on the first conclusion of law with additional interest on the balance of the purchase price ($9,871.25) from the date of the finding to the rendition of judgment added thereto.

(180 Ind. 229)

HARRAH v. DYER. (No. 22,411.)1 (Supreme Court of Indiana. June 6, 1913.) 1. PARTNERSHIP (§ 308*)-SURVIVING PARTNERS-ACCOUNTING-INTEREST.

Under Burns' Ann. St. 1908, § 9718, requiring a final settlement by a surviving partner within two years from the time of filing inventory, unless for good cause shown the court grants a longer time, a surviving partner delaying for four years after inventory to make his final account without permission of the court is chargeable with interest on the funds in his hands.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. & 713, 714; Dec. Dig. § 308.*]


2. PARTNERSHIP ($ 255*)-SURVIVING PARTCONTINUING BUSINESS - ACCOUNTWhere a surviving partner continues the business with permission of the court and the widow of the deceased partner ran a money account in the store for her support, on final account such advance must be added to the funds in the hands of the surviving partner and then subtracted from a half thereof, and not subtracted at once from such funds.

[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 552-561; Dec. Dig. § 255.*] 3. PARTNERSHIP (§ 255*)-SURVIVING PARTNERS-ACCOUNTING.

A surviving partner continuing the business may not be credited with the expenses of an expert accountant, as he should keep his books in such shape as not to need such


[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 552-561; Dec. Dig. § 255.*] 4. PARTNERSHIP (§ 255*)-SURVIVING PARTNERS-ACCOUNTING-EXPENSES OF SUIT.

A surviving partner continuing the business sued on his bond for breaches thereof, though successful, may not have credit for expenses of the suit, as the suit was not defended for the benefit of the estate.

[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 552-561; Dec. Dig. § 255.*] 5. PARTNERSHIP (§ 255*)-SURVIVING PART


Where a surviving partner continues the business under permission of the court to save a sacrifice, he may not be credited with worthless notes taken during such time; the worthless notes held by the partnership at the

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 552-561; Dec. Dig. § 255.*] 6. PARTNERSHIP (§ 255*)-SURVIVING PARTLoss oF CORPORATE


A surviving partner continuing the business to save a sacrifice held telephone stock of the value of $600 as firm assets and turned over the stock to the company for purpose of reorganization in good faith and under order of court and received new stock in exchange. Other stock was sold to outsiders with other stockholders that he would not at par. He then agreed on his own motion sell, with a result that the company became insolvent and the stock worthless, and assessment was levied which the partner paid. charged with the amount of the stock and Held, that the surviving partner would be the assessment for his failure to sell, though no offer was ever made therefor.


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The rule applicable to merchandising partnerships is that, in the absence of an agreement therefor in the partnership articles or a statute providing for it, a surviving partner is not entitled to compensation for winding up the affairs of the partnership.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. § 550; Dec. Dig. § 253.*] 8. PARTNERSHIP (§§ 253, 255*)-SURVIVING PARTNERS COMPENSATION FOR WINDING UP BUSINESS.

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Where a surviving partner represented to the court that it would be for the best interests of the estate to continue the business for a time, and it was so ordered, though against the wishes of the personal representative of the deceased partner and his widow, and the partner made no effort to sell the business except a petition for a private sale which was set aside, and he failed to account until four years after inventory, he will not be entitled to recover for his individual services in carrying on the partnership and winding it up.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 550, 552-561; Dec. Dig. §§ 253, 255.*]

Appeal from Circuit Court, Greene County; Chas. E. Henderson, Judge.

Exceptions by Fred E. Dyer, administrator, to the final report of William B. Harrah, surviving partner. From the judgment, the surviving partner appeals. Affirmed. See, also, 96 N. E. 41.

Transferred from the Appellate Court under clause 2, § 10, Acts 1901, p. 565; Burns' Ann. St. 1908, § 1394.

H. C. Shaw, of Indianapolis, and Cyrus E. Davis, of Bloomfield, for appellant. John T. Hays, of Sullivan, and Wm. T. Douthitt and Henry W. Moore, both of Terre Haute, for appellee.

COX, J. Appellee, as administrator de bonis non of the estate of Frank A. Fellows, deceased, filed exceptions to the final report of

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The conclusions of law were to the following effect: (1) That appellant was legally chargeable with each of the various items shown by the findings making up the aggregate above stated; (2) that he was legally entitled to the credits as shown making the aggregate sum stated above; (3) that he was not legally entitled to certain credits claimed which are set forth in the findings; (4) that the law was with the exceptor; and that appellant should pay within 20 days two certain judgments shown by the findings and within 20 days should pay into the hands of the clerk for the use of the exceptor $4,026.08; and that thereupon the final report should be approved and appellant as surviving partner discharged.

appellant as surviving partner of the com- [ation of the specific objections which are mercial firm of Harrah & Fellows, of which made to the conclusions of law. firm appellee's decedent was in his lifetime a partner. The exceptions filed were extensive, made charges of fraud and wrongdoing against appellant in closing the affairs of the partnership, demanded the addition to the account of many specific items of charge, and excepted to many specific credits claimed by appellant in the report. The issues formed on the report and exceptions were tried by the court. Upon request the court made a special finding of the facts and stated conclusions of law thereon which were favorable to appellee, and a judgment was rendered in accordance with the conclusions of law. From this judgment appellant appeals and relies for a reversal on assignments of error which involve the correctness of certain of the conclusions of law, the action of the court in overruling appellant's motion for a new trial, and in overruling his motion to modify the judgment.

Appellant excepted to the first, third, and fourth conclusions of law.

[1] The court found that August 11, 1903, appellant had on hand, over and above certain building and loan association stock and rent account, also mentioned in the findings, a sum not less than $4,500 above liabilities, and that by January 1, 1904, he could have filed his final report; that since that time up to the time of filing the report, August 11, 1908, there had been unreasonable and unnecessary delay in the final settlement; and that appellant was chargeable with interest at the rate of 6 per cent., amounting to $1,341. It is contended that the court erred in stating as a conclusion of law that appellant was legally chargeable with this or any amount of interest. The contention cannot be sustained. The statute requires a final settlement within two years from the time of filing the inventory unless for good cause shown the court grants a longer time. Burns 1908, § 9718. It does not appear that time was granted, and manifestly it appears that good cause did not exist upon which it might have been granted. . After a lapse of a rea

The finding of facts shows that appellant and Fellows had been, for a number of years prior to the death of the latter, which occurred November 18, 1901, equal partners in the hardware business, owning a stock of such merchandise and certain real estate in the town of Worthington; that January 15, 1902, appellant took upon himself the duties of surviving partner under the statute for the purpose of winding up the business as provided by law and filed an inventory showing merchandise on hand of the value of $8,174.66, notes notes due the partnership of $4,018.65, accounts due the partnership amounting to $2,081.89, and telephone stock, $600, making a total of $14,875.20; that March 11, 1902, appellant, without notice to the heirs or legal representatives of the deceased partner, upon representations that it would be to the best interest of the partnership, procured an order from the circuit court to postpone the sale of the partnership property and to continue the business of buy-sonable time for settlement, the rule is that ing and selling until further order of the court, and conducted it without further order until the sale of the stock in bulk, May 26, 1903; that during the time appellant so conducted the business he bought goods at wholesale to the amount of $22,608.31, and sold them at retail at a gross profit of $6,087.75; that he sold the stock in bulk at private sale May 26, 1903, for $6,100, which sale was approved by the court, and the finding shows the amount realized was all that the stock was then reasonably worth; that the final report was not filed until August 11, 1908. The account cast by the court in the finding of facts contained many charges which it was found were properly chargeable against appellant and which aggregated $31,181.38, and credits allowed to the amount of $21,650.64, leaving a balance of $9,530.74. The finding of facts is long and need only be

the surviving partner is chargeable with interest. 30 Cyc. p. 699 (c); 22 Am. & Eng. Encyc. of Law (2d Ed.) p. 219 (4); Bates on Partnership, §§ 786 to 789; Sanders v. Scott (1879) 68 Ind. 130; 4 Ann. Cas. note, p. 180.

[2] The court found that, after his death, the widow of the deceased partner was allowed to and did run a money account in the store for the support of herself and minor children and was advanced out of the funds of the business $739.28; and that by agreement of the appellant and appellee this sum was to be deducted from any amount found due the exceptor, and when so deducted should be a full satisfaction of the claim against the widow. The court added this amount to all the other charges against the appellant, and it constituted one item of the total charges against him. The amount was then deducted from the half of the bal

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found chargeable, leaving $4,026.08, the sum awarded to appellee. It is claimed that in charging this item of $739.28 against appellant the court erred. On the contrary, we think it quite obvious that the amount was properly added to the sum with which appellant was chargeable. A simple illustration will show the fallacious nature of the claim made in appellant's behalf. If the amount advanced to the widow had been $5,000 and the actual balance in the hands of the appellant had been $10,000, it is at once apparent that the estate of the deceased partner could realize nothing from the $10,000 balance without adding the $5,000 to it, while the surviving partner would keep it all, making two-thirds of the proceeds of the business received by him, while the estate of the deceased partner would have received one-third only. On the other hand, by adding to the $10,000 balance the sum of $5,000 advanced, the estate of the deceased partner would receive $2,500 after deducting the $5,000 charge against the distributive share of the estate of $7,500, while the appellant would be left with an equal share, $7,500.

[3] It appears from the finding that appellant employed an expert accountant to examine the books of the partnership from January 1, 1902, to the date of filing the final report and to marshal the facts for the report, and paid him therefor out of the funds of the partnership $200, which the court found was a reasonable charge, but refused to allow the sum to appellant as a credit. In this the court did not err as claimed by appellant. It was appellant's duty to so keep his accounts that the services of an expert accountant would not be required in the preparation of his reports.

[4] It is next contended that the court erred in refusing to allow appellant credit for the sum of $1,621.10 which it is found was paid by him to his attorneys for services rendered in the defense of an action brought in 1904 by appellee against appellant and his bondsmen based on various breaches of his bond, and which action resulted in a judgment against appellant which was subsequently reversed by the Appellate Court, and was still pending at the time of the finding. The court found that the amount was reasonable, but concluded as a matter of law that appellant was not entitled to credit there for in his settlement. The case was not defended for the benefit of the estate, but to save appellant and his bondsmen from liability to it, and the court's conclusion was manifestly right.

[5] A further claim is made that the court erred in its conclusions of law in refusing to allow appellant a credit of $1,196.72 represented by worthless notes. It is shown by the finding that full credit was given for all worthless notes held by the partnership at the time of the death of Fellows, and that

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claimed were all taken by appellant during the time he conducted the business thereafter and before the sale. The purpose of permitting a surviving partner to continue the business for a time is not primarily to make money, but to preserve the business as a going concern for an advantageous sale. And where, as here, the order of court for continuing the business is made at the instance of the surviving partner and upon his representations that it is to the best interest of the estate, it will not serve to protect him in making sales on credit to irresponsible parties. The general rule is that the surviving partner who continues the business must bear losses from bad accounts. 30 Cyc. 636 (1), 637 (2); Henry's Probate Law (3d Ed.) § 451.

The rule is properly applicable here, and the court correctly refused to allow the credit claimed. It is perhaps true that where the contract of partnership provided for continuing the business upon the death of either partner, or where it was continued with the consent of the personal representative or heirs of the deceased partner, or where profits far beyond losses were made, equity would permit a credit for losses to a surviving partner who had not been negligent; but the case before us does not require it. trial court in its conclusions of law to allow [6] Complaint is made of the refusal of the appellant credit for $600, the appraised value of telephone stock, held by the partnership at the time of the death of Fellows, and an assessment made on it thereafter and paid by appellant out of the funds of the partnership amounting to $203.16, and the sum of two judgments amounting to $696.84, which were taken against him on account of further assessments. The finding of the court with reference to this matter was that the partnership owned an undivided two-fifths interest in a telephone plant in the town of Worthington, which was inventoried as partnership property and appraised at $600; that at the time of the death of Fellows, and up until the 28th day of March, 1902, the property of the telephone plant was worth $2,350; that on said 28th day of March, 1902, the appellant upon his own petition and without any notice to the heirs or legal representatives of Frank A. Fellows was granted an order by the Greene circuit court to invest said interest in a corporation formed for the purpose of taking over said property; that for the interest held by said partnership, 36 shares in said corporation, of the par value of $25 each, were taken by appellant, and the transaction was duly reported to and confirmed by the court on the 1st day of April, 1902; that at the time of said investment all the stockholders in such company in good faith believed that said stock was worth par, and that the reorganization of said business would greatly enhance the value of said telephone property; that stock therein was sold to outsiders at par; that

holders, including the appellant, that no one would sell any part of his holdings in said corporation unless all sold; that an effort was made to sell the same within a year or two, and an offer was made by a prospective purchaser, who was ready, able, and willing to buy, but unwilling to pay the price demanded; that appellant at no time made any effort to sell the stock of the partnership in said corporation; that the interest in said partnership, both before and after the formation of the corporation, was worth at least $600; that the appellant at no time received any offer to buy said stock, nor did he have any opportunity to sell the interest of said partnership, nor did he offer the same for sale at any time; that later said telephone corporation met with reverses owing to competition and other difficulties, all without the fault of appellant, and growing out of circumstances beyond the control of the officers and stockholders of said company; that it became necessary for the corporation to make an assessment against all the shareholders, under the law of the state, to meet its liabilities from time to time, and was compelled to sell its plant for less than an amount necessary to pay its indebtedness; that in the year 1906 appellant was assessed on the 36 shares of stock in said corporation belonging to said partnership and paid out of the funds of said partnership the sum of $203.16; that creditors of said telephone corporation recovered judgments in the aggregate sum of $696.84, being the residue of the amount allowed by law to be assessed against the shares of stock so held by the surviving partner in said corporation, and for which the surviving partner is liable; that all the other shareholders were assessed under the law the same as the surviving part


It will be noted that the telephone stock at the time of the death of Fellows was worth $600, and was so appraised; that, after the interest held by the partnership had been invested in 36 shares of the corporation, the value of the stock was at least $600. While the investment was made by order of court and confirmed by the court, there was no order directing the appellant to hold said stock, and it was his clear duty under the law to dispose of it as promptly as possible in the settlement of the partnership affairs. The finding shows that after the formation of the corporation the stock was worth par, or $900, but that appellant had entered into an agreement with the other stockholders not to sell unless all sold. In the meantime disaster came upon the company resulting in the losses set out. While it is found that the appellant, neither before nor after the organization of the corporation, ever received an offer for the stock, it is also found that he never offered the same for sale. We think the court was clearly right in charging these losses to the surviving partner. 30 Cyc. 636640.

[7, 8] The contention is earnestly pressed that the conclusion stated by the court, that appellant was not entitled to credit for a sum claimed for his individual services in managing the business until its sale in making settlement of the trust, was erroneous. In relation to this claim for credit, the court found that at different times in 1902, the widow of the deceased partner made demand on appellant for the interest of her husband in the partnership, and in September, 1903, the appellee made a like demand; that appellant conducted the business under and by virtue of the orders of the court as stated in other findings and gave his personal supervision to the business; that reasonable pay for such services was $1,400; that reasonable pay for the final winding up of the affairs of the partnership was $100, making a total of $1,500; that during the time from the death of Fellows to February 16, 1903, appellant asked for no order of court to sell the merchandise in bulk, and made no effort whatever to sell the same, but on the date mentioned did file his petition to sell the stock at private sale in bulk, and an order was granted March 14, 1903, and the sale made; that appellee filed exceptions to the report of that sale, and it was set aside and a resale ordered and made as before stated May 23, 1903; that after the sale ordered in March, 1903, was made and set aside, appellee filed an application for a receiver under the provisions of the statute (section 9716, Burns 1908), but final action was not taken upon it.

It is claimed by counsel for appellant that, having been charged with gross profits realized in conducting the business, appellant was entitled to an allowance for services. It may be said that, while the finding shows that gross profits resulted from continuing the business, appellant was credited with all proper expenses including clerk hire, and the finding fairly shows that the estate was not benefited by any net profits. The statute of this state relating to surviving partnerships provides: "In case of the death of one partner, the surviving partner or partners shall proceed to settle and close up, as speedily as may be practicable, the partnership affairs in accordance with the law now in force, and the provisions of this act." His duties were clearly set out in the act, and, if he fails to take upon himself such duties, it is provided that the court having probate jurisdiction shall appoint a receiver who shall settle the partnership affairs. It is also provided that the surviving partner shall settle such partnership business within two years from filing the inventory, unless, for good cause shown, he be granted a longer time. There is no provision in the statute for payment to the surviving partner for his services, and the question whether he is entitled to compensation has not, we believe, been determined by this court. Resort therefore must be had to the general principles of

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