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163 Mo. 306

McCullough v. DeWitt

Supreme Court of Missouri

Decided June 11, 1901

Supreme Court of Missouri · decided 1901-06-11

— Hon. W. W. Rucker, Judge. The testimony of plaintiff, Warren McCullough, as to the profits on the material sold by defendant was incompetent and should have been excluded by the referee. His cross-examination shows that all he knew about the profits was what his deceased partner, Knight, had told him, and the referee erred in sustaining plaintiff’s objections to the cross-examination showing its incompetency. Elynn v. Wahl, 10 Mo. App. 582; Hoskins v. Eailroad, 19 Mo.

Cited by 3 later decisions — most recently November 1905

3 state decisions

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1901-06-11

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SHEEWOOD, P. J.

¶1This suit was brought for an accounting. The matters in issue were committed to a referee, *308who heard testimony and made a report to the court. The referee having heard all the evidence, made a careful and elaborate report, in which he found a balance due defendant of $78.74, which, adding interest at the rate of six per cent, amounted to the sum of $83.11.

¶2This report was approved by the trial court and. the exceptions thereto overruled and judgment entered accordingly.

¶3Looking over the evidence, together with the report of the referee, no reason is seen to doubt the correctness of that report. Presumptively such reports possess the quality of correctness, and even if there were some doubt as to the correctness of the referee’s findings, still, the inclination of this court would be to uphold the report, inasmuch as the referee had an advantage we do not possess, that of observing the manner and demeanor of the witnesses when on the stand.

¶4In addition to the considerations just mentioned, is the fact that there are omitted from defendant’s abstract and bill of exceptions, books of account, and other documentary evidence, which the bill of exceptions shows were before the referee, and on which his findings were based. This point, of itself, would furnish ground for affirming the judgment. [Doherty v. Noble, 138 Mo. l. c. 32; Wentzville Tobacco Co. v. Walker, 123 Mo. l. c. 670, and cas. cit.]

¶5Moreover, on the books of the late firm of Knight & McCullough, which passed into the hands of T. H. Booth, there were sums of money remaining charged on such books, which Booth admitted to Grant McCullough had been paid to him, and which he had never credited. Booth asserted that he put certain sums of money into the concern, before buying it out, but of these sums, neither date, amount nor from whence derived, were given; according to his own statement, he kept no book account or memorandum. Nor could he even aggregate the sums he thus professedly contributed; all he could say about *309it was: “Not exactly aggregate it, for I called in those amounts and put in the business whatever there was ."

¶6Such a slap-dash, happy-go-lucky manner of transacting business is not calculated to inspire a large amount of confidence in the accuracy of his business methods.

¶7Judgment affirmed.

All concur.
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