Metcalf & Bull, Respondents, v. Mattisons, Appellant

Metcalf & Bull, Respondents, v. Mattisons, Appellant. It is only in clear cases that this court will reverse a judgment for the refusal of a referee to nonsuit the plaintiff when the findings of fact have been approved by the court below. [MAJORITY — Porter, J.] Porter, J. If the facts found by the referee were warranted by the evidence, his conclusion of law was correct, and the plaintiffs were entitled to judgment. We are concluded by the findings, unless there was such a failure of proof as to justify us in holding that the referee erred in refusing the motion for a nonsuit. It is only in clear cases that this court exercises the power of reversing a judgment on this ground, when the findings of fact have been approved in the court below. The evidence in the present case was not very satisfactory, but we cannot say that there was an entire absence of proof tending to uphold the conclusions of the referee. We do not, therefore, feel at liberty to disturb the judgment on that ground. Assuming that the liability of the defendant was to the plaintiffs jointly, the state of their accounts with Bull individually was immaterial, and the evidence offered on that subject was properly excluded. Their demand against him. constituted neither a defense to the action, nor a counterclaim against the respondents. There was no allegation of payment in the answer, and there was no purpose for which the proof offered was available. The judgment should be affirmed.