Boyle v. Stallings.

Connor, J., after stating the case: We have examined the record with care and find no error in His Honor’s ruling. The plaintiffs insist that as defendants did not set up any counterclaim they were entitled at any time, prior to the final judgment, to submit to a nonsuit. We are of the opinion that while not in express terms, the defendants did in substance set up a counterclaim. Plaintiffs asked for an accounting, averring that upon an account stated it would appear that defendants were indebted to them, etc. Defendants submitted to an account, averring that plaintiffs owed them a balance. Prior to the adoption of The Code, plaintiffs would have filed a bill in equity asking for an account. By reason of the inadequacy of the machinery of courts of law to deal with long and complicated accounts, courts of equity assumed jurisdiction, especially in winding up partnership dealings. Eaton Eq., 516; Bispbam Eq., 505. Tbe rule in courts of equity denied tbe right to tbe plaintiff to withdraw bis bill after a decree has been made for an account. Egg v. Deavey, 11 Beav., 221. After a consent order for a mutual accounting before a commissioner, tbe complainant cannot dismiss by a common order. Wyatt v. Sweet, 48 *527 Mich., 539; Hall v. McPherson, 3 Bland. (Md.), 529, in which it is said: “But in this case, there having been a decree to account, each party has been thereby virtually clothed with the rights of an actor.” 6 Enc. Pl. & Pr., 847. While the precise question has not been decided by this court, the language of Merrimon, J., in Bynum v. Powe, 97 N. C., 376, indicates clearly the view which was entertained. He says: “Under the present method of civil procedure, there is but one form of action and the plaintiff, as indicated above, may, no matter what may be the nature of the cause of action, voluntarily submit to a judgment of nonsuit, except in cases purely equitable in their nature he cannot do so after the rights of the defendant in the course of the action have at tached, that he has a right to have settled and concluded in the action. Thus, if an order of reference has been made and the referee has made a report, the correctness of which is conceded by both parties and the case is in condition to be finally disposed of, or if an account has been taken and report made, or a decree has been made under which the defendant has acquired rights, the plaintiff will not be allowed to suffer a judgment of nonsuit.” Gatewood v. Leak, 99 N. C., 363. The cases cited by the plaintiffs’ counsel had no equitable element in them. They were actions formerly cognizable at law and are based upon the well settled rule that, when no counterclaim is pleaded, the plaintiff may at any time, before verdict, submit to a nonsuit. The defendants insist that if this action came within the rule, the plaintiffs may not take a nonsuit, because under section 525, Eevisal, the report of the referee in regard to findings of fact “shall have the effect of a special verdict.” When filed, the cause is in the same condition in respect to the right to submit to a nonsuit as if the jury had returned a special verdict. There is much force in the suggestion, but, as we have seen, the question does not necessarily arise. His Honor correctly^ denied the motion. The other exception which was argued with zeal and force *528 in this court is that the referees adopted a settlement made between the parties by Mr. Fisher, who it appeared was selected, prior to the bringing of this action, to examine their books. There was some controversy as to the extent, in point of time, which Fisher was authorized to make the settlement. The plaintiffs insist that the referees, instead of adopting Fisher’s figures, should have examined the items of account, themselves, and reported the conclusions upon them. There was evidence in respect to Fisher’s authority for the examination made by him and the acquiescence of the parties. It appears that he entered upon the books of the parties the result of his work. The defendants’ counsel in their argument before us exhibited the books, showing the items upon which Fisher’s conclusions were reached, and that they were before and after considered by the referees. It is elementary that we have no power to review the conclusions of fact as found by the referees and sustained by the judge, unless it appears that such findings have no evidence to support them. While the result of the accounting is very different from that anticipated by the plaintiffs, and their able and zealous counsel have presented their views upon us forcibly, we are unable to perceive any error of law, with which alone we are permitted to deal. It is conceded that the referees are honorable, intelligent business men. They appear to have proceeded with intelligence and fairness, and His Honor gave the record careful consideration. The form of the judgment is in accordance with the report and must be Affirmed.