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App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. account. The plaintiff, however, with the assistance of the defendant, Peter Van Name, Jr., appears to have laid before the court all the evidence which it was in his power to obtain.

If this is scanty, the responsibility must rest with the appellant, whose peculiar function it was to keep the accounts of the firm business, while his brothers were engaged in the more active and laborious work of the partnership. Where some of the books of a firm have been lost or destroyed, it does not follow that no accounting can be taken of the partnership affairs. The existing books may be used, and the proof derived from them may be supplemented by such other competent evidence as the parties can offer. (See Robertson v. Gibb, 38 Mich. 165; White v. Magann, 65 Wis. 86.) A similar rule must apply where the partner, whose duty it is to keep the firm books, has neglected for a time to perform that duty.

The second proposition stated in the brief for the appellant is that the acts of the partners create a conclusive presumption of a settlement and mutual accord which will not be disturbed. It is

It is argued that the members of this firm “ went on in their simple way for years, entirely satisfied to keep no regular books, have no account of stock, no trial balances, no balance sheet drawn off, showing how either the firm or its members stood, but each doing all he could and drawing out for himself what he chose, and often paying taxes and other bills jointly without any consideration of whether one was getting more than the other or not.” Assurning this to be a correct statement of what was done, it by no means follows that the members of the firm intended, when the business should be wound up, that no account should be taken of the question whether one partner had received more than his share of the earnings or not. There being no express agreement as to the shares of the respective partners, the law implied that they were equally interested in the partnership property and profits. (Gould v. Gould, 6 Wend. 263, 267; Ryder v. Gilbert, 16 Hun, 163, 168.) In view of this presumption it cannot be held that they had agreed to an unequal division of the earnings, merely because they went on doing business for many years without having any accounting with one another in reference to the business.

The third of the appellant's points relates to a number of exceptions to rulings which are alleged to constitute reversible error.

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. The only one of these which it seems necessary to discuss is the exception to the admission of the schedule, which has already been mentioned as having been prepared by the expert accountant from the cash books. The title to this schedule declares it to be a statement of items drawn not only from the cash books of the firm of Van Name Brothers, but also from their check book stubs. These check book stubs had not been admitted in evidence, and, so far as the statement was based upon such stubs, it was not admissible. It appears, however, from the ęchedule itself, that the items drawn from the check book stubs are stated separately at the end of the schedule. It also appears, from the referee's report, that he ignored these items in making up his account and ascertaining the liability of the appellant. The schedule, therefore, was admissible for all the purposes for which it was considered by the referee. The cash books, from which it was made up, had all been offered in evidence and were before the court, and it is perfectly well settled at this late day that resort may be had to schedules containing abstracts of voluminous books or documents which liave been put in evidence, where those schedules are verified by the witness who made them, and their assistance will render the original documentary proofs more readily comprehensible by judge, jury or referee. (Boston & Worcester R. R. Corporation v. Dana, 1 Gray, 83, 104; Jordon v. Osgood), 109 Mass. 457, 464; Von Sachs v. Kretz, 72 N. Y. 548.)

A careful consideration of the facts of the case, as disclosed by the record, affords no reason to believe that the appellant has been unjustly dealt with in the result reached by the referee. In my opinion, therefore, we should affirm the judgment and order appealed from.

All concurred.

Judgment affirmed, with costs.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

FREDERICK STURZ, Plaintiff, v. FREDERICK S. FISHER, Defendant.

Pleadings admission in an answer that one installment of the purchase price of

goods sold was due on the day the action was brought it does not entille the plaintiff to a judgment on the pleadings when the right of action accrues.

An allegation contained in the answer interposed in an action commenced Janu

ary 6, 1896, to recover for goods sold and delivered, which denies that the term of credit given on such sale had expired at the time of the commencement of the action, and avers that the purchase price was to be paid in weekly installments, the first so to fall due January 6th, 1896, such first payment to amount to $243.25; that such installment was the only one due at the time of the commencement of this action, and that the total balance was to become due and payable on dates subsequent to the commencement of this action,” does not entitle the plaintiff to judgment upon the pleadings for $243.25, as the admission that the first installment of $243.25 became due January 6, 1896, does not involve the conclusion that the plaintiff was entitled to begin suit for such installment on that day, as the law gave to the defendant the whole of January sixth within which to make the payment, and no right of action accrued to the plaintiff until the beginning of the day following.

Morion by the plaintiff, Frederick Sturz, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

This motion was transferred from the first department to the second departinent.

(See previous appeal, 19 App. Div. 198.)

George S. Hastings, for the plaintiff.

Leopold Leo and William Maupt, for the defendant.

WILLARD BARTLETT, J.:

The complaint alleges that between specified dates the plaintiff, “at the request of the defendant and upon his promise to pay therefor, sold and delivered to him certain goods, wares and merchandise of the stipulated and agreed value of $2,186.25;” that the term of credit upon which the said goods were sold has wholly expired; that no part thereof has been paid, and that there is now due and owing the full and true sum aforesaid. APP. Div.-VOL. XXXVIII.

58

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

The action was commenced on the 6th day of January, 1896.

The answer sets up three separate defenses. The first defense is a general denial. In the second defense the defendant alleges that · the plaintiff did sell to him goods of the value of $2,186.25; denies that the term of credit had expired at the time of the commencement of the action, or that no part of the amount has been paid, or that the sum of $2,186.25 was at that time due and owing to plaintiff from the defendant, and avers that “plaintiff and defendant, upon the sale of said goods, wares and merchandise, agreed that the credit or term of credit be extended so that the payments should fall due in nearly equal weekly installments, the first so to fall due January 6th, 1896, such first payment to amount to $243.25; that such installment was the only one due at the time of the commencement of this action, and that the total balance was to become due and payable on dates subsequent to the commencement of this action." The third defense was an admission of the alleged sale and a plea of payment.

When the case came on for trial the plaintiff moved upon the pleadings for judgment against the defendant for the sum of $243.25 with interest, on the ground that the answer admitted that amount to be due. The motion was denied and the plaintiff excepted. The plaintiff thereupon rested without offering any evidence, and the court then dismissed the complaint upon the motion of the defendant.

We think the dismissal was right. By his motion for judgment on the pleadings, the plaintiff practically abandoned his claim to recover in this action the full amount demanded in the complaint. The motion rested wholly on the admission in the second separate defense set up in the answer to the effect that the sum of $243.25 was the only installment due from the defendant to the plaintiff at the time the action was commenced. If that adinission did not involve the conclusion that the plaintiff was entitled to sue the defendant for $2+3.25 at the very time when he began this suit, then the motion was properly denied; and it having been denied, and the plaintiff introducing no evidence in support of his case, the court had no choice but to dismiss the complaint.

If we carefully read the averment upon which the plaintiff thus relies as an admission entitling him to judgment, we find that it sets

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

up an agreement for an extension of credit contemplating payment by weekly installments," the first so to fall due January 6th, 1896, such first payment to amount to $243.25." Then follows the allegation that “such installment was the only one due at the time of the commencement of this action." But if the installment was due on January 6, 1896, the law gave the promisor the whole of that day within which to make payment, and no right of action accrued to the promisee for non-payment until the beginning of the day following. Not only in regard to negotiable paper does the rule prevail that the maker of the promise has the whole of the last day within which to pay; it applies generally to contracts in which a given day is specified as the day of payment. (2 Add. Cont. [Abbott & Wood's ed.] 940; Osborn v. Moncure, 3 Wend. 170; Smadbeck v. Sisson, 31 Hun, 582, 584.) As the present action was commenced on that very day it was prematurely brought. The plaintiff should have waited until January 7, 1896, to begin his suit. While it was true that the installment was due at the time of the commencement of the action, it was not due at one hour of the day more than another, and until the entire day had passed no one could be sure that the installment would not be paid on that day; hence it could not be asserted that the defendant was in default for non-payment, and if he was not in default no suit would lie against him. In other words, although the installment was due on January 6, 1896, no default could be predicated of a failure to pay such installment until January 6, 1896, had wholly passed away.

The exceptions of the plaintiff should be overruled and the . defendant should have judgment in his favor on the dismissal of the complaint.

All concurred.

Exceptions overruled and judgment directed for defendant on dismissal of complaint at Trial Term, with costs.

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