Ridgely’s Notebook I, 171
Court of Chancery of Delaware, New Castle County.
August, 1817.
Bill states that Thomas Poinset, the late husband of oratrix and father of orator, formerly resided in New Jersey, and was prevailed on by defendant and his brother, in 1802, to take their farm in Dragon Neck on shares.
March, 1802, Thomas Poinset removed to the farm. No written lease — verbal contract that Thomas Poinset should farm the place on shares, and twenty baskets of wheat a year out
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of the whole crop for his family use, the remainder to be equally divided between said Poinset and J. and B. Newbold; the stock to be fed out of the whole crop of corn and a sufficiency kept for family use, the remainder to be equally divided between the parties aforesaid. The said J. and B. Newbold and the said T. Poinset were to find the cattle and sheep and hogs in equal moieties, and the profits to be divided in two shares, one to the said J. and B. Newbold, and the other to the said T. Poinset. The said T. Poinset was to be allowed a dwelling-house, firewood, poultry, vegetables, milk and butter without charge, and was to find horses, wagons and farming utensils generally, and work the farm, but was to be allowed for all the improvements to be made on the farm, and the said J. and B. Newbold were to pay the taxes.
T. Poinset worked the farm on this agreement until his death in August, 1806. [He] kept no account of the product, except cheese, butter, calves and other articles sold on the place [but] submitted to J. and B. Newbold to keep the accounts. All the wheat and corn (excepting one or two crops of the latter), and all the fat cattle raised or fattened were sent to said J. and B. Newbold, who sold them and received the money. One of them came in Spring to take account of articles sold by Poinset upon the farm, to enter them in the accounts. No settlement nor balance during life of Poinset.
T. Poinset died intestate, August, 1806. No letters of administration granted. Oratrix sold the property of said Poinset by advice of said J. and [B.] Newbold, and paid the proceeds thereof to said John Newbold on account of balance he alleged due to him and Brazille Newbold which oratrix believed to be true, and complainants never received any part of the effects of said T. Poinset. Complainants show that, through persuasions of said John Newbold, oratrix continued on said farm after death of her husband on same terms, and with orator she worked the farm until 1810, but she had no interest but as laborer to assist oratrix who alone was responsible to Newbold.
That in March 1810, oratrix, removed to and settled in Wilmington, where she became owner of a sloop called the Mary, where he meant to have traded coastwise to different parts of United States. Accounts nearly square, balance in her favor. She paid him [___][1]
in cash and assigned notes to him, taken to secure amount of sales of her husband’s effects as appears by receipt of J. Newbold to her dated April 14, 1810. J. New-bold produced no book containing balance due to him. That in April, 1810, a week or two after he [the orator] was of age, J.
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Newbold called on him at Wilmington and represented that more than $1000 due, and he would sue, but that he would take a bottomry bond upon his vessel and give time to pay. No friend, he gave him a bond pledging his vessel as security for $1050, balance he represented to be due to him. In short time, New-bold called and said he’d lost bond, and required another which orator gave, similar to first, except $25 on account of risk he ran of vessel’s being lost in her trip to New York although said J. Newbold did not insure vessel, or pay anything therefor to any person.
Defendant exhibited on request his account against T. Poinset and oratrix. Copies marked A. B.
In 1814, when his vessel was loading at Christiana Bridge, and a detention would have occasioned a loss of $500, Newbold came and threatened to proceed against vessel unless $500 were paid on said bond which orator was obliged to pay to avoid the detention of his vessel. Paid by order of Welsh and Egbert on Masden and Bunker, which Newbold received. Orator consulted his friends, found that he had been misled and deceived by Newbold; that he was not bound to pay his father’s and mother’s debt. Many charges against T. Poinset and orator unjust. No credit for articles which should have been credited.
The accounts on which bond was given unfounded etc. as follows:,
First, that T. Poinset is credited with wheat deeded and sold by J. and B. Newbold in one year only, whereas in each and every year good crops sold by said J. and B. Newbold on account of themselves and said T. Poinset.
Second, that T. Poinset is charged with taxes of the farm and in many instances the credits allowed are at a date long after they should have been given, especially $262.95 the half price of a quantity of cattle sold on account of said parties.
Third, the same items in many instances, are twice charged against T. Poinset, particularly $31 said to be paid to one Johnson for work done at the Marsh Bank.
Fourth, cash payments are charged which T. Poinset never received.
Fifth, T. Poinset is not allowed for $70 for three cows and two calves brought on the farm by said T. Poinset.
Sixth, that T. Poinset is not allowed $289.87 for carting wood, over and above the sums credited in the accounts.
Seventh, nor for $300 and upwards for sundry improvements made by T. Poinset.
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As to Lois Poinset:
First, that oratrix is not only improperly charged with taxes and interest which were not due, but also with the sum of $30 for cash advanced which she never received.
Second, also with $195 as one-half of 10 cattle bought for the use of the farm, which were fattened and sold by J. and B. New-bold, and no credit allowed to oratrix.
Third, also with divers cash payments which she never received.
And in many instances the credits given are less than she was entitled to as by Account D.
That Brazille Newbold died in February, 1815, leaving said John to survive him, who took sole management of the business connected with the farm, to whom orator and oratrix have applied to have the errors in the account rectified and bond delivered up, because orator had been misled by false suggestions that he was responsible for his father’s debts. And he well hoped, etc. But now so it is etc. They charge that orator was prevailed on to believe by the representations of J. Newbold that he was in law bound for said debts, and entered into the bond under that impression.
Prayer, that defendant may discover etc., and that said J. Newbold may be compelled to pay $500 with interest from time of payment, and surrender up the bond aforesaid and cancel the same, and that orator may be released and discharged of and from all obligation touching and concerning the same, and general relief.
Answer. T. Poinset about March, 1802, occupied farm of complainant. Lease not in writing. Terms were that P. should till the arable land at his own expense, and should deliver to defendant and his brothers twenty bushels of wheat to compensate for what said Poinset and his family should use, and should deliver one-half of the remainder of the wheat and other produce of the farm. Defendant and his brothers to stock the farm with cattle, sheep, and hogs, and the said T. P. should pay interest on his half of such stock. Poinset was to keep the banks and ditches of the marshes in good order at his own costs and charges, except in cases of extraordinary overflow, in which cases the defendant and his brothers were to contribute one-half of the expense arising from such overflow. Defendant denied all error, mistake, and fraud. He insisted that the bond (as it was proved) was voluntarily given, that the first bond being lost, a second was voluntarily given; and that afterwards $500 were paid by Urich Poinset.
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McLane reads depositions for complainants. . . .
April 14, 1810, John Newbold to Lois Poinset for sundry vendue notes payable in three and six months amounting to $441.90, on account of balance due also $260.00 in cash.
April 16, 1816, receipt, John Newbold to Urich Poinset for Welsh and Egbert’s order in his favor drawn on Masden and Bunker, payable thirty days after date for $500 which, when paid, will be on account of his bond.
The accounts of John Newbold against Thomas Poinset beginning May 18, 1802, and ending July 10, 1807. Balance, $601.71. Also Newbold’s account, Lois Poinset beginning May 30, 1807, and ending April 14, 1810, amounting to balance, $415.94. Note: credit seems to be given for the receipt of notes and cash. April 14, 1810, amounting altogether to $701.90. We claim repairs of farm taken out of Poinset’s hands and vested to others. September 2, 1805, letter John Newbold to Thomas Poinset agreeing to reimburse improvements if he (Poinset) did not stay. March 8, 1806, letter J. Newbold to Thomas Poinset about carting wood, to be compensated. April 10, 1805, letter J. Newbold to Thomas Poinset to cart wood. June 27, 1805, letter J. Newbold to Thomas Poinset that he, Newbold, had left money to pay taxes. September 15, 1803, letter J. Newbold to Thomas Poinset acknowledging receipt of $160 (credited in account).
Vandyke reads depositions for defendant:
Clayton Earle of the City of Philadelphia.
James Stephenson, 48 years.
Peter Pettit.
Edward Roche. One bond given in 1810, lost. Lost bond was given October, 1810, another bond given April 29, 1811. Lost bond was afterwards found and cancelled.
April 29, 1811, bond, Urich Poinset to John Newbold. Debt, $1023.9. This is a special contract, a bottomry bond. Receipt, April 5, 1811, Urich Poinset to John Newbold for $20 which he promised to pay. April 28, 1811, Urich Poinset his order in favor Alexander Davis for $120, drawn on John Newbold, paid.
October 29, 1803, letter, John Newbold to Thomas Poinset, exhibited by complainant, read by defendant. April 5, 1803, letter, John Newbold to Thomas Poinset, exhibited by complainant, read by defendant. June 20, 1805, letter John Newbold to Thomas Poinset exhibited by complainant, read by defendant.
John Newbold proves his book of accounts. Ledger, page 24, account of Lois Poinset.
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McLane. First, repairs and improvements are not allowed. Second, carting wood and cutting, not credited, worth $1.50. Mistakes in accounts. Some no vouchers. Cash charges. Lois Poinset has a right to investigate this account. Nothing will bar her. If she can show a clear mistake, she can compel New-bold to account with her. No account was ever made with Lois Poinset. Since he rendered his account, he has charged new matter. He did not give her credit for the $701.90, though he has since entered it, there is no settled account.
Vandyke for defendant. Urich and Lois did unite on the farm. Out of the funds of the estate, he built a vessel. He is connected with the accounts. He builds a vessel. A part of the money secured by bond was for money advanced for building the vessel. They can only surcharge and falsify. As to hauling wood and quantity, that is settled and supposition of witnesses is not enough to question or unsettle the account. So as to clearing. Settlement did take place, which closed the case. Debt obtained by duress. 2 Pow.Con. 163, 164; bargains by duress, or oppressively made, may be confirmed by subsequent acts. Here there are three periods at which this act was confirmed: first, giving a bond in absence of Newbold; second, he gave a second bond, first being lost; third, he pays $500 of this bond.
McLane. This case differs from the case of duress. On second bond duress ceases; the second bond given freely; it is party’s voluntary act. Here bond was given on representation of party that a balance existed; that balance not existing, second bond is no better than the first! 1 Fon.Eq. 14, 15; Court of equity corrects errors and detects fraud in account. Stated 2 Atk. 119, 2 Atk. 112. Party may surcharge and falsify. The bill states many charges unjust and untrue. Charges accounts unfounded as follows: wheat, taxes, half price of cattle sold, act twice charged, cash paid, no credit for cows etc., and other instances. Here we have surcharged and falsified. We have specified the articles. Proof as to wood, Poinset authorized to cut and cart. As to improvements, Newbold’s letters. Poinset removed. This is an error. No credit for improvements. No settlement with Thomas Poinset. He died, account unsettled. Balance against Thomas is carried to Lois. This account open until she left the farm. 2 Pow.Con. 196, an agreement may be set aside if the party misconceive.
Vandyke for defendant. They showed that T. Poinset was bound to keep accounts, and render them. Defendants could make no account but from the accounts of complainants and their intestate. The minutiae of the accounts do not rest with defendant. Plaintiff shows by his bill that there was some examination
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of the accounts prior to the execution of the bond. Balance claimed by Newbold was acquiesced in by complainant. Bond is given on the principle of a settlement. A settlement derived from the knowledge of each party. Each had a part of the accounts to keep. No fraud is alleged, no duress. They cannot question the account but on plain errors in the account, and plaintiff must satisfactorily prove the mistakes set out in his bill. They must specify the particular item. Divers cash items is not enough, they must lay their hands on the very charge or item.
THE CHANCELLOR.
The complainant may surcharge and falsify, but the onus probandi
rests on him. This onus probandi will not be discharged or performed by general surmise or conjecture of witnesses; there must be direct proof to satisfy the Court that he has either charged articles improperly or omitted credits to which the party is entitled. No such proof is here given. The improvements which it is alleged the complainants, or their father, T. Poinsett, made are not properly made out. There is Newbold’s letter promising to pay for improvements, and Stephenson’s testimony that Poinset cleared and grubbed about forty acres, and that this land was afterwards let to other persons. But the exact quantity of land cleared is not proved; but more especially the value. Was this clearing and grubbing worth one dollar or five or ten per acre? What was the nature of this clearing and grubbing? Besides, the Poinset’s perfectly knew of this work, if it was done. They produced here Newbold’s letter, and consequently had entire knowledge when the bond was given of everything touching this improvement. At no rate can I fix upon any value or quantity. Therefore the party here fails.