50 S.C. 385 | S.C. | 1897
The opinion of the Court was delivered by
This is an action on two promissory notes, one for $48, dated April 1st, 1888, payable January 1st, 1889, and the other for $2,000, dated March 20th, 1894, and payable January 1st, 1896. Plaintiff’s cause of action on the first note was admitted. The controversy here relates to the $2,000 note. The answer admits the execution of the note, but sets up as a defense that the note is without consideration and void, that it was executed under a mutual mistake that defendant was liable to plaintiff for the excess of defendant’s personal account over that of plaintiff during the existence of a copartnership between them, and that this liability had been extinguished by the dealings between the parties prior to the execution of the note; wherefore, the defendant prayed that the note be declared void and delivered up for cancellation.
The master, to whom the cause was referred, by consent,
The exceptions will be treated as a whole. They raise directly or indirectly the question whether there is error in the conclusion of the Circuit Court that the note in question is based upon a good and sufficient consideration.
If we were to treat this case as one at law, the judgment would necessarily be for affirming the judgment of the Circuit Court, since we have no power to review the findings of fact by that Court in a case at law. Where, however, the answer interposes an equitable defense, this Court has jurisdiction to review the findings of fact involved in the determination of the equitable defense. Witte v. Weinberg, 37 S. C., 579. When this Court is called upon to review the findings of fact by the Circuit Court, it is incumbent on appellant to satisfy this Court that the preponderance of the evidence is against the conclusions of the Circuit Court.
In August, 1887, plaintiff and defendant formed a copart
But let us, for the moment, concede that the sale by Chandler to Brown, April 5, 1893, was a dissolution of the partnership, and in law operated to cancel the private accounts of the partners, and let us further concede that Chandler’s account while he conducted the business alone should not properly form any part of the consideration of the note, since as to that he was both creditor and debtor, then it becomes important to ascertain when the new partnership was formed after April 5, 1893. Appellant’s attorneys in their argument say it took place either in the fall of 1893 or in the early spring of 1894, and that the time is immaterial. Chandler testifies that it took place March 1st, 1894, and Brown testifies it took place about the middle or latter part of October, 1893. The burden of proof is upon Chandler, who seeks to set aside a settlement of the partnership
The judgment of. the Circuit Court is affirmed.