Green v. . Castleberry

RodmaN, J. This action is for an account of a partnership tin a drinking saloon, called the “ Side Pocket,” in the village •of Durham. The partnership lasted from September, 1872, to about April, 1873. The principal expenditures seem to have consisted iu buying a lot and building a house. For •these purposes and for obtaining goods from time to time' the several partners advanced different sums. No regular accounts were kept and no means exist for stating an account except memoranda occasionally kept on loose pieces of paper, .and the recollections of the partners and others which naturally differ considerably. It was referred to a respectable member of the bar to take an account of the partnership ••dealings, which he did and made a report to which the plaintiffs filed twenty-four exceptions. The evidence fills thirty-nine pages of manuscript closely written, and the report of •the Referee, with the schedules, nine pages. The Judge, .after a deliberate examination, overruled all the exceptions *168 but one, amounting to $40, with which he thought the defendant ought to be charged, because he continued to use-the retail license of the firm after the dissolution, in an individual enterprise in a saloon called “ The Eirst and Last Chance.” It is our duty to consider the exceptions when they are in. such definite and intelligible form as is required by the prac--tice of the Court, and we have done so ; but it certainly cap. not be our duty to go into any detailed examination of them.Many of them are evidently frivolous, and it would be a-sheer waste of time upon them to do more than say so-Some of them, for example, the 7th and 8th, ai-e obscure y and they seem to be because the Referee drew wrong infet-ences of fact from the evidence, but they do not refer to the particular evidence which required contrary inferences, and apparently expect us to master the whole evidence to determine whether after the store-house was partially completed,, the defendant received, or might and ought to have received-,, profits enough to pay for the completion, or in effect to state-the whole account over again. As to exceptions in such shape as these it may perhaps be proper, though it ought not to be necessary, to state the rule which this Court will apply. It is not a new rule that we propose to establish, or one peculiar to this Court. It is a rule acted on by every Court which reviews findings of fact on final appeal, and is-intended to prevent the time of the Court which belongs to-all its suitors from being occupied in the tedious re-examination of minute facts for which it is not adapted. It is1within the jurisdiction and therefore it is the duty of this-Court in a certain class of cases to review on appeal the findings of the Superior Courts in matters of fact. But it does this as a Court of appeal and not as a Court of original jurisdiction. The Court-presumes the finding of the Judge of the Superior Court to be right until it is shown to be wrong, and therefore the error must be specially assigned or *169 the exception will not be considered, and the evidence bearing upon the question and showing the error of the Judge must be singled out and referred to, either in the exception; itself or in a'brief of counsel filed in the case. This I remember was said in Whitford v. Foy, when it was before this Court for the third time, but I do not find it in the case reported. We proceed now to consider the several exceptions: 1. The Referee has found on all the material issues. 2. It is quite immaterial who dissolved the partnership. 3. The Referee did find that there had been no settlement, of accounts and nothing more was material. 4. This was immaterial except as matter of evidence. 5. It is not necessary that a Referee shall find what is admitted by the pleadings, and it is not seen how the fact is material in this case. 6. The Referee has stated an account. This exception is-too general. 7. 8. These have been already considered. No evidence is referred to in support of them. They are unintelligible without a study of the whole evidence. 9 to 21, inclusive, and 23 are open to the same objection.- 22. Was allowed by the Judge. 24. Is not the fit subject of an exception as the costs form no part of a Referee’s report. Judgment below affirmed. The defendant will recover costs in this Court. Pee, CuRiam. Judgment affirmed.