Opinion
December Term, 1896.
Judgment affirmed, with costs. —
We find no sufficient reason for interfering with the result reached by the learned referee who tried this case. The main purpose of the suit was to establish the liability of the defendant A. Morton Ferris for $25,000, deposited with the firm of A.M. Ferris Kimball by the plaintiff in 1890. The defendants sought to show, in the first place, that the sum mentioned was paid to them not as a special loan or deposit, as the plaintiff alleged, but upon an open and running account between them and the plaintiff relating to stock transactions, and for this reason they contended that he could not sue for it as a separate and independent obligation. Another branch of the defense was that, upon the dissolution of the firm of A.M. Ferris Kimball, in 1892, and the formation of a new firm known as Ferris Kimball, in which A. Morton Ferris was not a partner, the old firm had been discharged from all liability on account of this $25,000. The evidence on both issues was conflicting, or such as to justify different inferences, depending upon the view which the trial court might take of the credibility of the witnesses and the significance to be attached or the weight to be given to the various items of documentary evidence, consisting largely of stockbrokers' accounts. In passing upon the questions of fact the referee has adopted the view which is most favorable to the plaintiff; and in the absence of legal error affecting his determination, or unless that determination is against the weight of evidence, we cannot set it aside without virtually making this tribunal the trial court in his place and stead. The judgment should be affirmed, with costs. All concurred.