24 Mont. 575 | Mont. | 1901
after stating the case, delivered the opinion of the Court.
The first question we will consider is whether or not the court below erred when it disregarded the findings of the referee, and made its own findings of fact and conclusions of law.
Counsel for appellant argue that under the. stipulation entered into between the parties to the action, and by virtue of which the cause was referred, Brown, the referee, was empowered to hear, try, and determine the issues presented, and to make his findings of fact, and report the same to the court; and that under these circumstances the referee became a special tribunal, and therefore ‘ his findings of fact could not be set aside or disregarded by the court, and a judgment entered inconsistent therewith. ’ ’ If this position of appellant were supported by the terms of the stipulations before us, we would be disposed to agree with counsel, and to follow the authorities cited by them. Under the stipulation of February 23, 1894, as we view it, the referee was not empowered to hear, try, and determine the issues, but rather to take the testimony, and report the same, together with his findings of fact thereon, to the court; that he should state an account between the parties; and that, when completed, his examination and report were to be filed, and either party should have the right to bring the same on to be heard before the court or judge upon 10 days’ notice. The language of the stipulation is that the referee shall have power “to take testimony,” and “to state a complete account” between the parties. Nowhere in the stipulation is the referee authorized to ‘hear, try, and determine’ ’ the issues between the parties, as was the fact in a majority of the cases cited by counsel upon this proposition. Thus, in Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764, we find the parties consented that the case should be referred to a master ‘ ‘to hear the evidence and decide all the issues” between them. So, in Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289, by consent of parties, the case was referred to a master to hear the causes,
Under Section 1130 of the Code of Civil Procedure “a reference may be ordered upon the agreement of the parties, filed with the clerk or entered in the minutes: (1) To try any or all of the issues in an action or proceeding, whether of fact or law, and to report a finding and judgment thereon: (2) To ascertain a fact necessary to enable the Court to determine an action or proceeding. ’ ’ If the reference was made under the authority of this Section the words of the stipulation and the interpretation given it by the parties indicate that the purpose of the reference was not to have the issues tried, and to have reported findings, and a judgment thereon, but rather to ascertain certain facts necessary to enable the Court to determine the action. But, in our opinion, the reference more properly falls under the provisions of Section 1131 of the Code of Civil Procedure, though made with the consent of the parties.
Weight is given to this construction by the stipulation of February 24, 1897, wherein the parties agreed “that this cause, together with the reports of the referee herein, and the testimony taken before the referee, and the books of account of the firm sought to be dissolved, may be argued and submitted to said court at the present term thereof for its consideration and determination, ’ ’ etc.; thus, in effect, declaring that it was not the referee, but the Court, which was to consider and determine the issues. Authority for such interpretation of these agreements of parties is found in Bradshaw v. Morse, 20 Mont. 214, 50 Pac. 53. In that case — an action for an accounting. — -the court, of its own motion, referred the cause to a referee to take the testimony of the witnesses, to state an account between the parties, and to report the same
All the evidence, both the original and supplemental reports of the referee, together with his findings and the objections and exceptions of the parties thereto, were before the court for consideration and determination, and, in so far as any action of the court below was concerned, it was as if the case had been argued and submitted to the court upon the pleadings and evidence in the first instance. The court was
Counsel for appellant say that the findings of the referee, under Section 1141 of the Code of Civil Procedure,, have the force and effect of a special verdict. We are of opinion that the reference contemplated by this section is one where the referee is called upon to hear and try the issue and report the facts thereon, and not one like that in the case at bar, where the referee was not to try and determine, but to take the testimony, and report the same, with certain findings thereon, for the information of the Court. Section 1141, supra, is to be read in the light of those sections of the Code immediately preceding. And, even when the referee is to report the facts, the force to be given to such report must depend, not only upon the nature of the action, but upon the terms of the order of reference, for ‘ ‘the terms of the order of reference determine the scope of the referee’s authority. ’ ’ (Bradshaw v. Morse, supra.) Entertaining these views, we cannot give to Section 1141, supra, the broad construction placed upon it by counsel for appellant.
Holding, as we do, that the court was not required to enter a formal order setting aside the findings of the referee before proceeding to determine the case upon the evidence, findings, and reports submitted, we have before us but one set of findings, — those of the court below,- — and .these we will now consider.
inasmuch as counsel entertain widely different views in regard to the terms of the partnership formed in July, 1884, an examination of the conditions then existing becomes material. Under the agreement of July 1, 1879, to continue in force for five years from date, Greenleaf & Co. contracted to give the appellant, Patterson, one fourth of the profits of their live stock business. In consideration thereof Patterson was to devote his entire time and attention to the care and management of this business. Out of his share of the profits he was to buy and pay for a one-fourth interest in the sheep and other property belonging to said firm, the basis of purchase being the value of the property on July 1, 1879, stated in the agreement to be §12,465.60. Patterson was to pay for said one-fourth interest as rapidly as any of the profits of the business were realized and determined. Greenleaf & Co. were to furnish Patterson a sum not exceeding §25 per month; such sum was to be an advance to him, and was to be paid back by him out of his share of the profits as they should be determined. On all sums furnished him in excess of §200 per annum Patterson was to pay the current rate of interest. Five years from the date of the agreement a final settlement of all accounts was to be had, and final profits were to be arrived at, the basis of calculation being- the value of the company property at that time. All profits arising from the business dur
At the hearing before the referee the defendant offered no evidence in support of the allegations in his answer. His testimony, and that of the witnesses called in his behalf, was directed solely to the question of the value of the company property in 1884. John T. Murphy, one of the plaintiffs, upon matters other than the value of the property in 1884, testified, in substance, as follows: “Patterson was familiar with the books. In 1884, Patterson, being unable to pay for one-fourth of the original plant, it ($3,095) was charged to him by agreement: the other partners agreed to carry it on the books as a debit against him; it was at his request and his agreement and consent. The contract expired July 15, 1884, and was not completed in the particular that the plant was wound up, and sold out, and valued, and profits arrived at, but simply by agreement the business was continued, he taken in as a partner, and given one-fourth of the plant; he was paying for one-fourth of the original plant, he being taken in as a partner, and acquiring one-fourth of the whole plant by paying for one-quarter of the original plant. The profits remained intact; nothing was taken out by any member of the firm; and we agreed to loan him the amount on the books to buy one-fourth of the original plant. The books were written upon that basis, and the business continued under that agreement; and the further agreement was entered into that he was to have $100 per month for his personal attention to the business. The daily detail books were kept by Mr. Patterson, and they were written up at the end of the year, and copied off by my bookkeeper. Patterson had full knowledge of and participated in it. The books were written up from the original entries, all except the closing entries,- — the computation of interest, or something cf that kind, at the close of the year. He was usually present at the annual settlements. The sub
The referee, after hearing the testimony and examining the books of the partnership, found that the said partnership owed George D. Patterson the sum of $8,257.70 with interest from January 27, 1894, the date the receiver of the partnership property was appointed; that no settlement was ever had between the parties of the transactions under the contract of 1879, nor was there ever any balancing of accounts under the partnership formed and existing after the termination of said contract. Upon the matter being referred back to the referee for a further report, he found, in addition to the above findings, that the co-partnership was indebted to John T. Murphy in the sum of $677.79,' and to Henry L. Chipman in the sum of $52.49; that the interests of the several partners were:
Counsel for appellant attack these findings and conclusions on the ground, among others, that they are unwarranted by the facts now before us. After a careful consideration of the whole record, we cannot agree with counsel, but are forced to the conclusion that the deductions drawn by the court below from the evidence are sound, and in accordance with the acts and intention of all the parties. The primary error in the calculations of the referee, and to which his mistake in finding that there was due from the firm to Patterson the sum of $8,257.70 may be attributed, was in giving Patterson credit for the sum of $8,695.76 as of the time the partnership was formed, to wit: July 15, 1884. Appellant says that under the agreement of 1879 he was to have one-quarter of the profits at the end of five years. This is true, but it is also true that he was to buy a quarter interest in the original plant at a stated price, that he was to pay for this interest out of the profits as they were realized and determined, and that at the end of the five years — the life of the contract — a final settlement of all accounts was to be made, and final profits arrived at and determined. The evidence shows that at no time during this five-year period were any of the profits of the business determined, nor did Patterson pay any part of the amount he owed for his quarter interest in the original plant, or of the moneys that bad been advanced to him. And when the contract of 1879 was at an end, although under its terms he was
Unaided by the facts before us, it would be difficult to give force and effect to all the terms of the contract of 1879, since there is a conflict between certain of its provisions, while others, as we have shown, were never acted on or carried out. In the light of events subsequent to the formation of the contract of partnership of 1884, we cannot but feel that the findings of the court below are in accord with the evidence and understanding of the parties, and so will not be disturbed on this appeal.
The other errors urged not being sufficient to warrant a reversal, the judgment and order appealed from are accordingly affirmed. Affirmed.