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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 85   View pdf image (33K)
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LILLY VS. KROESEN. 35
credit ($16,402 27) of A. Lilly & Co., on leger A, folio 38,
are to be transferred to the debit ($943 03) and credit
($16,402 27) of Alonzo Lilly, in folio 19 of leger A, and
then, after paying the debts of the concern, shall pay over
from time to time, as assets may come in, say $1,402 27 to
Alonzo Lilly, and $867 32 to J. Kroesen, (to each in proportion
to their respective amounts,) being .for the interest on the
capital at first put in. This done, he shall from time to time,
as assets may be received, pay to A. Lilly $7,705 70, or
thereabouts, exclusive of $2,394 31 now at his debit, to place
him on an equal footing with Josiah Kroesen, aa regards his
account of $5050, (leger A, folio 6,) for expenses, &c., and the
residue (if any) to be divided from time to time, say two-thirds
to Alonzo Lilly, and one-third to Josiah Kroesen, so that in the
end Alonzo Lilly shall have received two-thirds and J. Kroesen
one-third of the net profits of the business of Josiah Kroesen
& Co., from the 1st day of February, 1886, to the 1st day of
January, 1839. All sums paid to either party shall, at the
time of payment, be charged to their respective accounts, and
no interest to be allowed or paid by or to either party from
this date."
The plaintiff's bill impeaches this contract and settlement
of the partnership of Kroesen & Company in several parti-
culars, and by an amendment made by agreement, and filed on
the 24th of this month, it prays for liberty to surcharge and
falsify the several accounts referred to and specified in said
agreement, in the several particulars in the bill mentioned.
And one of the questions, and the most important one in the
controversy, is, whether a case has been made out entitling the
plaintiff thus to surcharge and falsify ?
The right is not placed upon the ground of fraud, which
would entitle the party to open and unravel the whole account,
and indeed there is no evidence in the cause upon which the
least suspicion of fraud can be raised. If the right exists at
all, it must be because of error or mistake, which, leaving the
settlement to stand, permits the party to surcharge and falsify;
the onus probandi being on him to whom the liberty is given;
VOL. III.—7

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 85   View pdf image (33K)
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