| N.C. | Jan 5, 1878
We will consider the exceptions to the report of the referee seriatim, and first those of the plaintiffs:
1. That the sum allowed to the defendant as a fee to his attorney, Mr. Venable, is excessive.
The sum allowed is $200, and it appears that the attorney claimed, and the defendant paid, a much larger sum. Without going into any *179 discussion of the question, which would be an useless labor, we are of opinion that the allowance was not excessive. This exception is overruled.
2. That the allowance of commissions to defendant is illegal, and if any be allowed, 5 per cent is excessive. The legality of it depends on the construction of the agreement of defendant of 1 April, 1870. In that paper (A) he agrees that "if on a sale of said lands he (268) shall realize any profit after paying all the purchase money, costs and charges he may have been or hereafter may be at by reason of such purchase, he will hold the same for the use and benefit" of the plaintiffs.
We are of opinion that these words exclude the defendant from any claim to commissions or other compensation for his services. They cannot come under the head of charges that he had been or might thereafter be at. Such words clearly included only expenses paid out by him in attending to the business. This exception is sustained.
3. The referee credited defendant with $ _____ paid to plaintiffs from about ___________ to the beginning of this action. This exception is, that a large part of this credit is unsupported by the evidence. C. C. P., sec. 246, says: "When the reference is to report the facts, the report shall have the effect of a special verdict."
Of course, if there was no evidence of the payment which the referee allows as a credit, the exception would be sustained. And I think (although I do not know that my associates concur with me on this point) that if the evidence appeared clearly insufficient to support the findings of the referee on the matter of fact, we might disregard his findings, at least so far as to send it back for a new trial. But as was said in Green v.Castleberry,
This Court presumes the findings below to be right until it is shown to be wrong. Hilliard on New Trial, p. 484, ch. 14, sec. 68; Smith v.McCluskey, 45 Barb. (N. Y.), 610. In the present case, after having read such parts of the evidence bearing on this exception as we were referred to, we concur with the referee in his conclusion. It cannot be said that his conclusion is clearly against the weight (269) of the evidence. A discussion of such a point would be of no value, and we content ourselves with simply expressing our conclusion. One remark may be permitted on the evidence. Formerly a trustee disbursing money was not a competent witness as to any amount over some trifling sum, generally stated at $4; but now he is competent to prove disbursements by himself to any amount, his credibility being always open to be impeached. *180
The defendant, if he kept an account, as he swears he did, can scarcely be mistaken as to the sums paid out, except by an omission to charge a payment, which would be against himself. If he errs in excess, he must be deliberately and willfully false. Whereas I do not understand the plaintiffs to swear that they or either of them kept a complete account of the sums which they received. They may be honestly mistaken, and if mistaken at all, are no doubt honestly so.
We all know that nothing is more difficult than to keep accurately an account of trading at a store, or any other account, in the head for a great length of time. And the liability to error is increased if some only of the items are noted in a book, for we soon come to forget that all are not so noted, and to believe that there were no others.
We come now to the exceptions of the defendant:
1. The referee finds that the defendant is entitled to interest at 1 1/2 per cent per month, on the $2,200 which he borrowed from the bank at that rate, for ninety days only, whereas defendant contends that he is entitled to retain for the interest which he actually paid at this rate, up to the date when he received money from the sale of the land to enable him to pay off his debt.
Our opinion on this point is with the defendant. The money was borrowed before the execution of the agreement of 1 April, 1870 (Exhibit A), and had been applied to obtain an assignment of the (270) mortgage on the land, and it can scarcely be doubted that the whole transaction, including the rate of interest to be paid, was known to W. A. Green when the agreement was entered into. At all events, the agreement was to pay the plaintiffs any profit which the defendant might realize upon a sale of the lands after paying "all the purchase money, costs, and charges he may have been or hereafter may be at by reason of such purchase"; and until the defendant was indemnified from this interest, there could be no profit. There was no loan from the defendant to W. A. Green on which the defendant received usurious interest, or on which he made a profit of any sort. Substantially as the agent and for the benefit of Green, he borrowed money at usury on Green's agreement to indemnify him on the sale of the land. I know of no statute or principle of law making such an agreement illegal.
This exception is sustained, and as it does not clearly appear when the money was borrowed or when the defendant received money wherewith to pay the debt, the referee hereinafter appointed will ascertain those dates from the evidence before the former referee, or otherwise.
2. Relates to the sum paid to Mr. Venable, which has been already considered. Any sum paid to Mr. Venable for professional services beyond the $200 allowed to the defendant was unreasonable and excessive for any services which he is shown to have rendered. A trustee *181 cannot spend the money of his cestui que trust unnecessarily or extravagantly, and relying on a court for indemnity. This exception is overruled.
3. Referee does not allow defendant credit for $124 paid to W. A. Green while plaintiffs were living with him.
This payment does not come within the purposes as described in the agreement to which the profit on the sale was to be applied. The money and articles were supplied to W. A. Green, and upon (271) his credit, and not to the plaintiffs, upon their credit.
While they lived with their father, he was under a presumed obligation to support them, and it must be presumed that credit for family supplies was given to him, unless there is proof to the contrary. This exception is overruled.
4. This exception has been considered and disposed of with the first.
The judgment of the Superior Court is reversed, and it is referred to the clerk of this Court to modify the amount reported by Mr. Referee Strong, in accordance with this opinion, and report to this Court.
PER CURIAM. Reversed.
Cited: Overby v. B. and L. Association,
(272)