Hays v. Bayliss

• Decision Date: 30 April 1884
• Citation: 82 Mo. 209
• Parties: HAYS, Appellant, v. BAYLISS.
• Court: Missouri Supreme Court

82 Mo. 209

HAYS, Appellant,

v.BAYLISS.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

J. D. Shewalter, for appellant, argued that the finding of the referee was erroneous.

Alexander Graves and A. F. Alexander for respondent.

It is the settled practice in the Supreme Court of this State that it will not interfere with the judgment of the court below, unless the evidence is preserved. Bonnot v. Party, 59 Mo. 98; Routsonz v. Railroad Co., 45 Mo. 237. Since the year 1840 no finding of facts can be embraced in the judgments of inferior courts, and if embodied therein, cannot be regarded by this court on appeal. Martin v. Martin, 27 Mo. 227; Brosius v. McGaugh, 27 Mo. 330; Gist v. Eubank, 29 Mo. 248. The finding of the referee was right.

NORTON, J.

This suit was instituted in the circuit court of Lafayette county for the purpose of settling a partnership between plaintiff and defendant, entered into in 1869 and continuing till 1871. The petition alleges that the accounts were unsettled; avers that upon settlement a large balance was due plaintiff; and asks that an account be taken and judgment rendered for the amount claimed to be due. The answer is a general denial.

The case was referred to Mr. Blackwell with directions to take the account and report his action to the court. After taking, as stated in the report, eight hundred pages of evidence, he made his report, according to which the firm had made large profits and left plaintiff in debt to defendant in the sum of $4,993.71. Various exceptions were filed to this report by both parties, some of which were sustained and some overruled, and resulted in a re-reference to the referee of an item of charge “to cash from daily cash sales, as per cash book, $28,996.34,” and, also, as to an item of $9,588.79, “cash collected on accounts credited on ledger but not entered on cash book.” It was contended that the latter item of charge was included in the former and for the purpose of ascertaining the correctness of this claim, the re-reference was made. The referee made his second report and found that the above charge of $9,588.79 was included in the larger charge and in restating his account left the item out, and found that the firm had lost $2,276.74, and that defendant was indebted to plaintiff in the sum of $1,138.37. To this finding of the referee both plaintiff and defendant again filed exceptions, which were taken under advisement by the court till its next term, when some of the exceptions were overruled and some sustained, resulting in a modification of the statement by withdrawing the item of $2,276.74 reported as a balance of loss and adding an item of $3,663.93, which the court found had been omitted from the statement by the referee, which left plaintiff in defendant's debt $693.57, for which judgment was rendered, from which plaintiff appeals and we are asked on this appeal to pass upon the questions involved, in the absence of the evidence taken by the referee.

The following extracts made from the reports of the referee, after the case had been in his hands for about two years, will suggest sufficient reasons why we decline to do so. He states that, in his...