David Augsbury, Appellant, v. George W. Flower, Respondent

David Augsbury, Appellant, v. George W. Flower, Respondent. (Argued January 24, 1877; decided January 30, 1877.) This action was for an accounting between copartners. The business began in 1859; resulted in a loss and was closed in 1861, when the parties had a settlement. Defendant allowed and paid to plaintiff a sum agreed upon as his share of the losses, and plaintiff assumed and agreed to pay the partnership debts, and executed to defendant a written instrument, discharging and releasing him from said debts. This suit was commenced in 1867. Plaintiff claimed and attempted to show that there was fraud or mistake in the settlement. The referee found against this claim. Held, that the evidence did not so clearly show that he erred as to warrant a reversal; that after an acquiescence by the parties in the settlement for so many years, the evidence must be clear and decisive before it could be set aside upon allegations of fraud or mistake. The defendant produced a copy of the release, claiming that the original was lost. The evidence presented to lay a foundation for the introduction of the copy, was to the effect that defendant had not seen the original for four years; that he had made diligent search and inquiries for it; that, when he last saw it, he delivered it to one Winslow, who testified that he did not have it. Held, that the evidence of loss was sufficient to authorize the admission of the copy. Francis N. Fitch for the appellant. Bradley Winslow for the respondent. [MAJORITY] Plaintiff reads for affirmance. All concur. Judgment affirmed.