Rhyne v. . Love

Smith, C. J., (after stating the case). The record, like many others brought up for a review of rulings of the Court, in one of which (Bank v. The Law. Man. Co., 96 N. C., 298), we took occasion to state the proper practice in cases of appeal, when the exceptions were solely to the referee’s report, shows no exceptions to the rulings of the Court, which alone, upon matters of law, can be reviewed on appeal. Of these exceptions, such as relate to the referee’s findings of fact, are conclusively disposed of by the Judge in the Court below, and are not cognizable here; and this included alleged errors in specific items mentioned. The essential matters of complaint, and to which the reviewable exceptions have reference, are: *492 1. That the referee did not regard the alleged settlements as final and conclusive up to their respective dates, and undertook, in the absence of any charge of falsification or omissions of items, to go behind them for correction and reformation. 2. That he did not find that the parties, by an agreement, divided the partnership property of the ginning business themselves, and adjusted it; and 3. That he did not report that more than three years having elapsed since such alleged settlements, the action was barred by the statute of limitations. The disposition of these exceptions, as understood by us, will dispose of the appeal. These settlements were relied on in the answer as a full and complete defence to the action, and this was the subject of inquiry before' the jury, when, upon an expression of opinion from the Judge that the defendant’s own evidence did not sustain the defence, the jury were discharged, without rendering a verdict, and the reference by consent was made, the scope of which embraces the full account of both partnerships. It was therefore the duty of the referee to inquire into all the matters connected with them, and, accepting what had passed between the parties when examining their individual accounts, as prima fade evidence of the correctness of the results reached, to correct any errors which might be detected in either. These were not settlements in truth, but simply statements of the condition'of the accounts at the respective dates. . The entry is in one case: “ Settled in full May 27th, 1874,” and yet this was but a construction put upon the calling over items and an assent to them as correct. Had a witness been present and testified to what occurred, it would have been quite as effectual to bar an inquiry into the accuracy and completeness of the. account as is the entry upon the book, but in neither case does such a conse *493 quence follow. It is simply evidence open to correction of errors, if any exist. The complaint could not “ surcharge and falsify,” for it proceeds upon the idea that both partnerships were open and unadjusted, and does not recognize a settlement of either. This is a defence.set up in the answer, and calling for proof in its support as such, without requiring a replication from the plaintiff. Moreover, its insufficiency is admitted in the consent reference under its broad, comprehensive terms. There is therefore no error in the action of the referee in this particular, and in holding that there is no statutory bar to the action, which is dependent upon the alleged settlement as to the time when it is put in motion. The case of Lynch v. Bitting, 6 Jones Eq., 238, sustain's the referee in his ruling, that what occurred in summing up results was not of such a conclusive nature as to bar an account, wherein Marly, J., says: “There has been an occasional calculation of interest and summing up of results, as they appeared upon the books of the partnership, and a division of profit balances; but inasmuch as there has been no final account at any time stated between them, our inference is, that none of the transactions referred to were considered conclusive, even as to the matters embraced, but were stages in their books to guide them in partial settlements.” The referee finds, and is sustained by the Court in the finding, that of the ginning property, the gin, a belt and pair of scales, worth $125, went into po.-session of the plaintiff, and the rest of the gin machinery, of the value of $420, was taken by the defendant and appropriated to his own use, and this without any agreement that this partition was to be a settlement. They are accordingly charged with these respective values. *494 Upon a careful examination of the case we discover no error subject to correction here, if requiring it, and the judgment must be, and is, affirmed. Affirmed.