Krapp v. Aderholt

1. Reeebee — Report—Power of Court. A referee is an officer of the court appointing him, and the court has full authority to supervise and control his report; it can set aside, and confirm, and modify the report, as the facts and the law require. 2. --Report — Practice. Where none of the testimony before a referee is preserved in the record, and the trial court strikes out from the report of the referee an allowance for damages, other than interest, for the failure of one partner to furnish his share of the partnership funds to carry on the business, such order and judgment will not be set aside or reversed. 3. Pabtnebshib— Interest on Money Withheld. Ordinarily, when one partner fails to furnish his share of the partnership funds, according to agreement, the only damage for which he is liable therefor is interest on the money due and withheld.

Error from Wabaunsee District Court. On the 27th of October, 1886, A. F. Aderholt filed bis petition, alleging a partnership in the butchering business with Edward Krapp, commencing on the 26th day of May, 1886, and asking for an accounting and winding-up of the business. Krapp filed an answer containing a general denial only. The issues of fact in the case were referred to M. Nicolson, Esq., for hearing, on or before the 15th day of December, 1886. The court made the further order that the report of the referee be filed on or before the 1st day of February, 1887. On the 11th day of December, 1886, the court enlarged this order, and permitted the referee to hear evidence up to and including the 30th December, 1886. On the 1st day of February, 1887, the referee filed his report. This report contained the following statement of accounts: “A. F. Aderholt in account with Edward Krapp, and Edward Krapp as successor of Krapp & Aderholt: Cr To balance purchase-price of said one-half interest.. $385 00 To interest on $385 for eight months at 7 per cent. per annum..................................... 17 97 To money received............................... 19 00 To damage by not furnishing capital.............. 100 00 By half-interest in concern, converted by Krapp to his own use August 19, 1886........................... $400 00 By interest on $400 at 7 per cent, from'August 19, 1886, up to February 1,1887.......................... 12 82 By one-half profits..................................... 106 66 By balance............................................. 2 49 $521 97 $521 97 Debtor $2.49.” Subsequently A. F. Aderholt filed his objections to the report. These objections were presented and argued at the March term of the court for 1887. At that term Krapp made a verbal motion in court, asking leave to amend his answer so as to claim damages for the refusal of Aderholt to furnish one-half of the money necessary to carry on the business as he agreed to do. The court made the following conclusions of law on the findings of the referee: “1. On the 26th day of May, 1886, a partnership existed between said plaintiff and said defendant, and continued until the 19th day of August, 1886. “2. The defendant cannot recover damages against the plaintiff for a breach of the contract of partnership in an action by the plaintiff for a dissolution of the partnership and a settlement of partnership affairs. “3. The defendant is indebted to plaintiff in the sum of $97.51.” The defendant filed his motion for a new trial, which was overruled, and the court rendered judgment in favor of the plaintiff and against the defendant for $97.51. The defendant excepted, aud brings the case here.