Smith v. Smith

When this case was before us at a former general term, we granted a new trial, because it seemed to us that Cassius had obtained Edwin’s interest in the rink property substantially without consideration, where it ought to have been subjected to the payment of Flora’s judgments. The court, on the new trial, has proceeded on this theory. It has found on sufficient evidence that the value of the entire rink property owned by the two was $2,000, and that they, as partners, owed $552.34, which Cassius agreed to pay, and has paid. That left $1,447.66 as the net value of the rink property, which Cassius obtained under the bill of sale from Edwin; and that sale did Flora, as Edwin’s judgment creditor, a wrong to the extent of his interest in this $1,447.66, which was one-half thereof, $723.63. The court has now credited this sum ($723.63) on the mortgage held by Cassius against Edwin’s interest in the lands sought to be partitioned, and reduced the lien thereof accordingly. This seems to us correct. We do not apply the oral understanding to the facts of the case as Flora’s counsel contends. He urges that $1,800 was to be the extent of Edwin’s loss, according to the oral bargain between him and Cassius; but the facts were that the rink had cost $7,000,— that is to say, $3,500 each. But Cassius had paid or become liable for $1,500 of the $3,500 which Edwin put in; hence Edwin’s contribution to the rink was $2,000 over and above this $1,500. But the entire property had dwindled in value to about $2,000, besides which were these debts of $552.34. Hence, if Cassius took the property, Edwin would sink the $2,000 which he put in. Just how they figured his loss at $1,800 is a matter which we do not clearly see; but it seems to us tolerably plain that it referred in some way to the loss which each was to suffer on their actual contributions, and was not the limit of Edwin’s loss if Cassius took the rink. On the whole, we think that substantial justice has been done, and that quite independent of the reception of the testimony to which Flora excepted. These views lead to an affirmance of the judgment.

The costs of this appeal are in the discretion of the court, and the circumstances will doubtless justify us in charging Flora with them; but in view of the particular relations of the parties we think that it will be fair to excuse her from those costs if she shall consent to accept this decision, but if she refuses so to do she should be adj udged to pay them.