Trudeau v. Mather

Mathews, J., delivered the opinion of the court. This suit is based on a contract of mortgage, wherein the defendant acknowledges to owe to the plaintiff, the sum of nineteen thousand four hundred and fifty dollars eighty-five cents, which he promised to pay by annual instalments of three thousand two hundred and fifty dollars, seventeen cents. The debt purports to have arisen in consequence of the acts of the defendant, as curator ad bona of the plaintiff, and was stated to the amount stipulated in the act of mortgage, as a result of calculations of interest on certain sums of money which came into the hands of the curator. These calculations originated in a settlement of accounts between him and his ward, after the latter arrived at the age of majority, and were made by a person to whom the accounts had been submitted for adjustment, by the curator. The court below considering the calculations made by the referee, as grossly erroneous, and prejudicial to the defendant to a very large amount, rendered judgment in his favor, by which the account as adjusted, was set aside, and the contract of mortgage,' *558 a sequence of it, was annulled; and from this the plaintiff appealed. In an action of on an account i^siiown tobe grossly erroneous in its ealeulations and a-will be sefaside for adjustment, and the contract of mortgage anmacte hfiror.", The calculations of the referee are shown by the evidence °f the case, to be illegal and erroneous, both in relation to the rate of interest assumed, and the manner in which it was compounded for a number or years, producing a result egregi°ly wrong, and prejudicial to the defendant, probably to more than one half of the sum stated against him. . . . . , The error complained of m this transaction, is so evident and gross, as in our opinion, clearly to authorise the judgment 0f ¿he court below. That court might perhaps, after setting ., , , n ■ , r aside the account rendered, and annulling the act or mortgage, have proceeded to adjust the accounts of the curator, and rendered judgment for the sum which should appear to be justly due to the plaintiff. But the pleadings of the c.ase do not require a proceeding of this kind, consequently, not having taken this step, is ■ no ground of error in the judgment as pronounced. .The parties may hereafter adjust their differences amicably, or if this cannot be effected, the courts of justice remain open to the plaintiff, in which he may prosecute his claim. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.