Marabitti v. Bagolan

StkahAN, C. J. The main contention upon the trial here was as to whether the partnership was dissolved by the mutual agreement of the parties about June 12,1890, and as to whether there was any such agreement made between the parties at said time as is set out in the seventh finding of fact. After carefully considering the evidence, we are led to a different conclusion from that of the learned referee. On the issue of new matter tendered by the answer, the onus [301] was upon the defendant to prove his allegations by a preponderance of the evidence. In this, we think he signally failed. A particular examination of the evidence we deem unnecessary. It would only be a commentary upon the credibility of the witnesses and of certain discrepancies in the statements of the defendant, which we deem material, and which tend greatly to weaken his position. It is also proper to add that the plaintiff is supported by several disinterested witnesses who are not of the same nationality as the parties to this suit. So far as we are able to discover, these witnesses are credible, and testify without any of the prejudices or animosities that sometimes unfortunately find their way into a case and render it extremely difficult to decide among conflicting and contradictory statements. The decree appealed from will therefore be reversed, and the cause remanded to the court below with directions to find that the partnership between the plaintiff and defendant was not dissolved on the twelfth day of June, 1890, nor at any time except by its own limitation as provided in the partnership agreement; that said parties did not enter into the agreement mentioned in the seventh finding of fact by the referee, and that said court proceed to take and state an account of the affairs and business of said partnership and enter a decree settling the same according to the respective rights of said parties.