Opinion
June Term, 1876.
Report of Referee.
A report of a referee that does not state all the items of the account between the parties will be set aside for vagueness.
ACTION, tried before Cannon, J., at Fall Term, 1875, of HAYWOOD County, upon exceptions by the plaintiff to the report of referees.
The plaintiffs brought the action for an account and settlement of the partnership matters of the firm composed of plaintiff and the defendants McClung and J. C. Deaderick, and further alleging that the defendant R. V. Deaderick was indebted to the firm.
It is unnecessary, for the understanding of the opinion of the Court, to set out all the facts in full.
The referees reported that:. . . "We find that the firm of John McCampbell Co. received from the sale of mica, and from merchants, and from J. C. Deaderick, the sum of $5,648.09; we find that the company has paid out, by way of disbursements, the sum of $5,608.41; amount of receipts over disbursements, $39.48. We find that at the date of the deed of trust, which was 1 July, 1874, the company owed a large sum of money to different parties; of said amount $1,397.16 is due J. C. Deaderick for money loaned. We also find that, up to the date of the execution of the deed of trust, John McCampbell had drawn out of the company $1,031.34, and that he paid the company $103.25. That Chas. McClung had drawn $891.93, and J. C. Deaderick, by R. V. Deaderick, $228, making in all drawn out $2,151.27. We find that of this amount John McCampbell was entiled [entitled] to three-eights, which is $806.73; McClung to three-eights, which is $806.73; J. C. Deaderick to two-eights, which is $537.82. All of which is respectfully (394) submitted," etc.
To this report plaintiff excepted:
I. That, in item 2 in said account, the referees find the amount of receipts from sales of mica, from merchants, and from J. C. Deaderick, to be the sum of $5,648.09, which the plaintiff says should be: From sales of mica, $3,641.13; from merchants, $3,653.52; from J. C. Deaderick, $1,753; from Tennant Bros., $250, and from profits on merchandise, $44.96, making a total of $9,342.61.
II. That the account shows a total of disbursements of $5,608.41, leaving the amount of receipts over disbursements of $39.48, when the evidence shows an excess of $3,734.20.
III. That, while the account states 1 July, 1874, the company owed large sums, and especially to J. C. Deaderick — $1,397.16 — it fails to show the amount of such indebtedness, and how provided for, when the evidence shows the indebtedness of the company, including the $1,397.16, was secured by a deed of trust, etc.
IV. That the referees have failed to declare the law upon the facts found by them, and have failed to render a decision upon the whole case of the affairs between the parties.
The court overruled all the exceptions of the plaintiff, and gave judgment for the defendants according to the report.
From which judgment plaintiff appealed.
G.S. Ferguson for appellant.
J. H. Merrimon, contra.
The exceptions to the report for vagueness and uncertainty must be sustained. The parties are entitled, from the referee, to a statement of all the items of the account between them, in order that either may, if he thinks proper, except to any particular item.
Exception to the report for vagueness sustained. Case (395) remanded to be proceeded in.
PER CURIAM. Reversed.
Cited: Comrs. v. Maguire, 85 N.C. 117; Gore v. Lewis, 109 N.C. 541; Sharpe v. Eliason, 116 N.C. 667.