Makely v. . Montgomery

Pee Ottbiam:. Tbis is an action brought for tbe settlement of a copartnership. A compulsory reference is bad, exceptions filed ito tbe report of tbe referee, and tbe cause tried on issues submitted to tbe jury. 1. Tbe defendant excepts because bis Honor confined tbe trial upon tbe issues to tbe evidence taken before tbe referee. Tbis was in accordance with tbe act of 1897, cb. 237. So far as tbe record discloses, there are no additional matters entering into tbe controversy upon tbe amendment to tbe pleadings, and we think tbe case falls within tbe principle laid down in Moore v. Westbrook, 156 N. C., 482. 2. As to tbe quantum of proof required to establish a trust under tbe first issue, we think tbe charge of bis Honor was substantially correct, and practically followed tbe principle laid down in Ely v. Early, 94 N. C., 1, and Harding v. Long, 103 N. C., 1, and many subsequent decisions of tbis Court. *591 3. One of tbe claims of tbe defendant in tbe settlement of tbe copartnership account was tbat under tbe terms of tbe copart-nership be was entitled to be credited with bis living expenses as a part of tbe current expenses of tbe firm. This claim was allowed him by tbe referee, but tbe defendant excepts to this finding with reference to tbe amount allowed, and demanded a jury trial as to this. We agree with bis Honor tbat there was no sufficient evidence tbat tbe defendant was entitled to have credited to him bis living and family expenses as a part of tbe expenditures of tbe firm. Tbe language employed in tbe conversation between plaintiff and defendant in respect to this matter is entirely too indefinite and uncertain to warrant any such conclusion. We have examined tbe several assignments of error and tbe record, and are of opinion tbat tbe judgment should be Affirmed.