Furst & Thomas v. Whitmire

The opinion of the Court was delivered by Mr. Justice Brease. Plaintiffs brought suit in the Court of Common Pleas of Pickens County on August 13, 1920, against the defendants, alleging in their complaint that the defendant, Whitmire, was due the plaintiffs a balance of $788.99 on account, as per written contract made by that defendant with the plaintiffs on December 2, 1916, and they exhibited with their complaint an itemized, verified statement of the account sued upon. Plaintiffs further alleged that defendants, Smith [41] and Robertson, for valuable consideration, guaranteed, in writing, the payment of the account of the defendant, Whit-mire, to plaintiffs. The defendant, Whitmire, in his answer, admitted that he had purchased goods from the plaintiffs, but denied that he owed the amount demanded in the complaint, or any other amount; he further alleged that the plaintiffs were due him money, and asked for judgment in his favor for such amount as should be found, was owing to him by plaintiffs. To the counterclaim the plaintiffs replied with a general denial. The defendants, Smith and Robertson, by answer, denied the allegations of the complaint, except as to such matters as were admitted. They admitted that they had signed a paper for their codefendant to plaintiff, but alleged that it was simply a “recommendation” as to the “honesty and good character” of Whitmire, and they specifically denied that they in any way guaranteed the payment of any debt or obligation of his to the plaintiffs, arid said that if plaintiffs had “such paper” it was fraudulent. They further -set up in their answer: “If there is any paper in the possession of plaintiffs which can be construed into a guaranty for said defendant (Whit-mire), signed by these defendants, then such words were inserted after the same was signed by them.” The action is one at law, but the parties waived the right of trial by jury and agreed that the case should be referred to O. S. Stewart, Esq., who was directed to take the testimony and report the same with his conclusions as to the facts. A reference was held, at which testimony for the plaintiffs, taken by deposition, was offered. The defendants testified in person, and did not offer any other witness. The Referee filed the testimony taken by him, and in his report found the following facts: (1) That after allowing certain credits in favor of the defendant, Whitmire, that Whitmire was still due the plaintiffs a balance of $725. [42] (2) That the defendants, Smith and Robertson, signed the contracts in the form presented to the Referee by plaintiffs, and thereby guaranteed the payment of orders of the 'defendant, Whitmire, to the plaintiffs. All the defendants filed exceptions to the Referee’s report. The defendant, Whitmire, based his exceptions on the ground that the Referee had not allowed him all the credits to which he was entitled, and that the Referee should not have found that he was due any sum to plaintiffs. The defendants, Smith and Robertson, excepted on the ground that the Referee erred in finding that the contract held by plaintiffs was signed by the defendants, J. P. Smith and P. C. Robertson, in its “present form,” when he should have found that nothing was printed after the signature of D. H. Whitmire at the time the said defendants signed the same, and that they did not, in any way, become guarantors of the said Whitmire. Upon the hearing of the report of the Referee and the exceptions thereto, his Honor, T. J. Mauldin, presiding Judge, sustained the findings as to the defendant, Whitmire, but reversed them as to the defendants, Smith and Robertson. Let the decree of Judge Mauldin be reported. Defendant Whitmire has not appealed. From the findings of the Circuit Judge in favor of the defendants, Smith and Robertson, the alleged guarantors, the plaintiffs have appealed. . There are two exceptions: The first charges error on the part of the Circuit Judge in setting aside the findings of the Referee on the ground, “that here was no competent testimony to rebut the presumption that the paper was regular and without fraud and no competent testimony to rebut the direct testimony of the plaintiffs to the effect that the instrment sued on was the one signed by these respondents.” The second exception alleges that there was error on the part of the Circuit Judge “in not holding that the respondents were liable for the balance due on said contract [43] even though it should be proven by them that the last paragraph of the contract was not in it when executed by them, the error being that if this were true they would be liable as principals according to the tenor of the original instrument.” As to the first exception: Both the defendants, Smith and Robertson, testified to the effect that there was “no printing below Whitmire’s name at the time I signed contract.” Plaintiffs alleged in their complaint that these defendants had signed the contract, and they introduced it in evidence. The defendants stated, under oath, that the paper presented to the Court was not in the same form that it was when they attached their signatures. In their answer, Smith and Robertson alleged that they did not sign any guaranty. The evidence referred to was competent on the issues involved and was a direct attack upon the genuineness of the instrument which was the basis of the suit against these two defendants. This exception is overruled. As to the second exception: The plaintiffs did not sue Smith and Robertson as principals, but as guarantors. It does not appear that before the Referee, or before the Circuit Judge, plaintiffs took the position that these two defendants were liable as principals. Under the pleadings and testimony they were liable as guarantors, or they were not liable at all. We cannot sustain this exception. The plaintiffs earnestly insist that there was no testimony whatever in behalf of the defendants, Smith and Robertson, on which to sustain the Circuit Judge’s finding in favor of these defendants, and that his findings of fact should be reviewed and reversed. The case being one at law, the plaintiffs had the right to insist upon a jury trial. But they waived that right by agreeing to submit all questions of law and fact to a Referee and to the Circuit Judge. The Referee [44] found in their favor, but on exceptions the Circuit Judge found against them. When parties consent to an order of reference in a law case and agree -that all the issues are to be heard and determined by a Referee, a Circuit Judge has the power to review the Referee’s findings of fact and his conclusions of law, and upon such review the Circuit Judge has the right to affirm, modify, or reverse such findings. Meetze v. Charlotte, etc., 23 S. C., 1. Gregory v. Cohen, 50 S. C., 502; 27 S. E., 920. The facts as found by the Circuit Judge are sustained by sufficient evidence; we have pointed to some of it already; therefore, those findings are conclusive and are not reviewable here. Smyth v. Brunson et al., 115 S. C., 385; 108 S. E., 99. All the exceptions are overruled. The judgment of the Circuit Court is affirmed. Mr. Ci-iiee Justice Gary and Messrs. Justices Watts and Stabler concur.