GROAT v. O'HARE

GROAT v. O’HARE. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 35. Argued October 21, 1880. Decided November 8, 1880. This case is reversed because this court is not satisfied that the court below reached a proper conclusion on the facts. Mr. T. T. Crittenden for appellants. Mr. B. T. Merrick and Mr. M. F. Morris for appellee. [MAJORITY — Mr. Chief . Justice Waite] Mr. Chief . Justice Waite delivered the opinion of the court. We are not satisfied from the evidence that the court below was right in directing the auditor, in stating the account of the partnership, to credit O’Hare with $2926.20, for items set out in Schedule D, annexed to the first report. It is clear to us that the items, amounting in the aggregate to $1650, for hire of horse and buggy, are not proven, but it is impossible, from the. case as it now stands, to determine what amount, if any, should be allowed for these and the other claims in that schedule. We think, also, that the parties should be permitted to produce further evidence in respect to the certificates amounting to $5600, which O’Hare, on his cross-examination before the auditor under the reference from the general term, admits he received from the Evans Concrete Company. It is clear that he" should be now charged with this amount, unless it has already been included in the accounts as stated by the auditor. It is impossible to determine from, the case as it is now presented whether he has been so charged or not. We find no other errors in the action of the court below. The decree is reversed and the cause remanded with instructions to permit the parties, if they desire, to take further testimony in respect to the items of charge by O’Hare, as stated in Schedule D, and the certificates received by O’Hare from the Evans Concrete Company, and for such further proceedings, not inconsistent with this opinion, as shall seem to be necessary. Bevei sed.