Larremore, Ch. J.
It is to be regretted that the
learned referee before whom this case was tried did not furnish the court •with an opinion, or with some memorandum in writing, however brief, giving his views of the evidence and showing by just what process of reasoning he reached the result embodied in his report. As it is, with nothing but the record and the original exhibits before us, Ms conclusions seem so contrary to the weight of evidence that we are obliged to reverse the judgment on that ground. It is conceded that the plaintiff and defendant were co-partners in trade under the firm name of Comey & Andrews, from some time in the year 1868 until on or about the 29th day of September, 1877. The plaintiff contends that the partnersMp was not terminated upon the day last named, but extended indefinitely beyond, and is in fact in existence yet. The defendant claims that such co-partnership was brought to an end upon said 29th day of September, 1877, by the execution of a written instrument signed by both Mmself and the plaintiff. Such alleged instrument was produced upon the trial, and is before us. It bears the defendant’s signature and also what purports to be the signature of the plaintiff. The plaintiff denies that such alleged signature is Ms, and that he ever signed such an instrument. ■ There [439]*439is no subscribing witness, and the decision of this question of fact depends entirely upon the conflicting statements of the parties, with, however, such corroboration as the surrounding circumstances and subsequent admitted facts will furnish.
We think upon all the proof in tins case that the weight of evidence is strongly in favor of the contention that plaintiff did sign the instrument, and that he did so intentionally and deliberately. We have compared the disputed signature with several others among the exhibits which are conceded to be the plaintiff’s, and as far as we can judge without the help of experts, the signature under consideration seems to be the work of the same hand as the others. The defendant gives circumstantially the facts leading up to the execution of this instrument, and the circumstances under which it was actually executed. Furthermore, other papers in the case, confessedly signed by the plaintiff after the disputed instrument, corroborate its genuineness by being apparently given in pursuance of its terms, and in conformity with the general scheme of settlement which it contains. This is so with regard to the so-called Exhibits 1, 2, and 3 of October 8th, 1885. This is also the case with regard to the receipt of plaintiff for six hundred dollars, dated April 17th, 1882, being Exhibit 2 of June 13th, 1885. The general scheme comprehended by the instrument of September 29th, 1877, is, (1) that the partnership shall be dissolved; (2) that the plaintiff sells and transfers to the defendant as his sole property all his (the plaintiff’s) interest in all the assets and property of the firm; (3) that the consideration for the above transfer is that plaintiff shall have credit on the books of the firm for his one-half of proceeds of sale of the firm property; (4) it is expressed that the object of the execution of the instrument is to reimburse the defendant for money advanced from time to time for the interest of, and in aid of, said firm, the business to be wound up as soon as possible and to the best advantage, and final settlement to be had as soon as possible of all accounts. The three instruments, also, above referred to', Exhibits 1, 2, and 3 of October [440]*4408th, 1885, were transfers of plaintiff’s right in and to certain pieces of realty in which the firm had an interest, which were recorded. The receipt of April, 1882, read as follows:
“ Received, New York, April 17th, 1882, of W. C. Andrews, Six hundred (600) dollars in full of account and settlement.
(Signed) “ J. M. Comey.”
Defendant claims, with regard to this, that it was given after all the affairs of the firm had been settled up, and, as expressed in the receipt itself, in full of account and settlement between the parties, under the former instrument of dissolution of December 29th, 1877. All these instruments, to which reference has been made, taken together, would seem to bear out defendant’s contention. But plaintiff’s answer to the final receipt is another charge of fraudulent alteration of the instrument itself. He testifies that although he received the $600 at the time named, and although the signature to the receipt is genuine, yet that when he signed such receipt it ended with the word “ dollars,” and that the words “ in full of account and settlement ” have been added by the defendant since it was signed. Here again we think the weight of evidencé is strongly in favor of the defendant’s version of the transaction. He gives the circumstances with enough particularity to show that the incident made an impression on his mind, but still without sufficient minuteness of detail to make exact recollection seem phenomenal or suspicious. Also, as far as we can judge from an actual inspection of the receipt itself without the aid of experts, there is nothing to lead one to believe that the words in question were inserted after the signature had been made. They "are in the same handwriting, apparently made with the same p6n and ink, and follow along in the same line after the word “dollars” as if written at the same time.
Plaintiff; in order to make out his case, has been obliged to accuse the defendant of forging his signature to one important instrument and fraudulently altering another [441]*441after its execution. The law is loath to presume either forgery or fraud, and, as before shown, the admitted facts and surrounding circumstances do not seem to us to support plaintiff’s accusation, but rather to corroborate the defendant’s testimony. When we turn to the referee’s action on this subject, we find in the fifteenth and nineteenth matters of fact found at plaintiff’s request, that he has. fallen into error both as regards form and substance. He has found matters of evidence in both of such findings. A court or referee is to find matters of fact and conclusions of law, not the evidence which, in his opinion, supports them. He has also found that the burden of proof was upon the defendant to establish the validity of these papers, and that the settlement claimed to have been made under them was actually made, and that" defendant has failed to prove such validity and such settlement. In tins we think he clearly erred. The burden- of proof doubtless was upon the defendant in the first instance, but he made out a strong presumptive case, by tbe production of the instruments themselves, and his own oath to the genuineness of the signature and the circumstances attending their execution. To offset this presumptive case was simply plaintiff’s uncorroborated denial, and we are obliged to hold that the weight of evidence is so clearly in favor of the defendant upon such points that findings fifteen and nineteen are error. The referee in his sixteenth finding also fell into an inconsistency that would in itself be error if any practical result had followed from it. This concerns the instrument of dissolution, which plaintiff denies that he ever signed.
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Larremore, Ch. J.
It is to be regretted that the
learned referee before whom this case was tried did not furnish the court •with an opinion, or with some memorandum in writing, however brief, giving his views of the evidence and showing by just what process of reasoning he reached the result embodied in his report. As it is, with nothing but the record and the original exhibits before us, Ms conclusions seem so contrary to the weight of evidence that we are obliged to reverse the judgment on that ground. It is conceded that the plaintiff and defendant were co-partners in trade under the firm name of Comey & Andrews, from some time in the year 1868 until on or about the 29th day of September, 1877. The plaintiff contends that the partnersMp was not terminated upon the day last named, but extended indefinitely beyond, and is in fact in existence yet. The defendant claims that such co-partnership was brought to an end upon said 29th day of September, 1877, by the execution of a written instrument signed by both Mmself and the plaintiff. Such alleged instrument was produced upon the trial, and is before us. It bears the defendant’s signature and also what purports to be the signature of the plaintiff. The plaintiff denies that such alleged signature is Ms, and that he ever signed such an instrument. ■ There [439]*439is no subscribing witness, and the decision of this question of fact depends entirely upon the conflicting statements of the parties, with, however, such corroboration as the surrounding circumstances and subsequent admitted facts will furnish.
We think upon all the proof in tins case that the weight of evidence is strongly in favor of the contention that plaintiff did sign the instrument, and that he did so intentionally and deliberately. We have compared the disputed signature with several others among the exhibits which are conceded to be the plaintiff’s, and as far as we can judge without the help of experts, the signature under consideration seems to be the work of the same hand as the others. The defendant gives circumstantially the facts leading up to the execution of this instrument, and the circumstances under which it was actually executed. Furthermore, other papers in the case, confessedly signed by the plaintiff after the disputed instrument, corroborate its genuineness by being apparently given in pursuance of its terms, and in conformity with the general scheme of settlement which it contains. This is so with regard to the so-called Exhibits 1, 2, and 3 of October 8th, 1885. This is also the case with regard to the receipt of plaintiff for six hundred dollars, dated April 17th, 1882, being Exhibit 2 of June 13th, 1885. The general scheme comprehended by the instrument of September 29th, 1877, is, (1) that the partnership shall be dissolved; (2) that the plaintiff sells and transfers to the defendant as his sole property all his (the plaintiff’s) interest in all the assets and property of the firm; (3) that the consideration for the above transfer is that plaintiff shall have credit on the books of the firm for his one-half of proceeds of sale of the firm property; (4) it is expressed that the object of the execution of the instrument is to reimburse the defendant for money advanced from time to time for the interest of, and in aid of, said firm, the business to be wound up as soon as possible and to the best advantage, and final settlement to be had as soon as possible of all accounts. The three instruments, also, above referred to', Exhibits 1, 2, and 3 of October [440]*4408th, 1885, were transfers of plaintiff’s right in and to certain pieces of realty in which the firm had an interest, which were recorded. The receipt of April, 1882, read as follows:
“ Received, New York, April 17th, 1882, of W. C. Andrews, Six hundred (600) dollars in full of account and settlement.
(Signed) “ J. M. Comey.”
Defendant claims, with regard to this, that it was given after all the affairs of the firm had been settled up, and, as expressed in the receipt itself, in full of account and settlement between the parties, under the former instrument of dissolution of December 29th, 1877. All these instruments, to which reference has been made, taken together, would seem to bear out defendant’s contention. But plaintiff’s answer to the final receipt is another charge of fraudulent alteration of the instrument itself. He testifies that although he received the $600 at the time named, and although the signature to the receipt is genuine, yet that when he signed such receipt it ended with the word “ dollars,” and that the words “ in full of account and settlement ” have been added by the defendant since it was signed. Here again we think the weight of evidencé is strongly in favor of the defendant’s version of the transaction. He gives the circumstances with enough particularity to show that the incident made an impression on his mind, but still without sufficient minuteness of detail to make exact recollection seem phenomenal or suspicious. Also, as far as we can judge from an actual inspection of the receipt itself without the aid of experts, there is nothing to lead one to believe that the words in question were inserted after the signature had been made. They "are in the same handwriting, apparently made with the same p6n and ink, and follow along in the same line after the word “dollars” as if written at the same time.
Plaintiff; in order to make out his case, has been obliged to accuse the defendant of forging his signature to one important instrument and fraudulently altering another [441]*441after its execution. The law is loath to presume either forgery or fraud, and, as before shown, the admitted facts and surrounding circumstances do not seem to us to support plaintiff’s accusation, but rather to corroborate the defendant’s testimony. When we turn to the referee’s action on this subject, we find in the fifteenth and nineteenth matters of fact found at plaintiff’s request, that he has. fallen into error both as regards form and substance. He has found matters of evidence in both of such findings. A court or referee is to find matters of fact and conclusions of law, not the evidence which, in his opinion, supports them. He has also found that the burden of proof was upon the defendant to establish the validity of these papers, and that the settlement claimed to have been made under them was actually made, and that" defendant has failed to prove such validity and such settlement. In tins we think he clearly erred. The burden- of proof doubtless was upon the defendant in the first instance, but he made out a strong presumptive case, by tbe production of the instruments themselves, and his own oath to the genuineness of the signature and the circumstances attending their execution. To offset this presumptive case was simply plaintiff’s uncorroborated denial, and we are obliged to hold that the weight of evidence is so clearly in favor of the defendant upon such points that findings fifteen and nineteen are error. The referee in his sixteenth finding also fell into an inconsistency that would in itself be error if any practical result had followed from it. This concerns the instrument of dissolution, which plaintiff denies that he ever signed. The referee finds that, although plaintiff never signed it, yet as the defendant has signed it, and has offered the paper in evidence, he is bound by the final clause thereof, to wit: “ The business to be wound up as soon as possible and to the best advantage, and final settlement to be had as soon as possible of all accounts,” as a stipulation, which would remove any question which might have existed prior to that date as to the statute of limitations upon the accounts of the co-partners. Such finding is clearly [442]*442erroneous. It is difficult to perceive how a purely one-sided instrument can be given effect as a stipulation, and how the referee could hold that the plaintiff was a stranger to the instrument, and yet that the defendant was bound by its terms. Mutuality is fully as essential an element of a stipulation as of a contract. Possibly the idea which the counsel for the plaintiff and the referee had was that the production of. this instrument by the defendant, signed by himself, although they claimed that plaintiff had nothing to do with it, would yet operate as against the defendant, as an estoppel, and would preclude him on such ground from raising the statute of limitations. But I do not think that even this theory would be tenable.
It might be claimed that, although the instrument of September 29th, 1877, wrought the technical dissolution of the firm, yet an accounting would nevertheless be necessary, because this instrument provided, not for the payment to plaintiff of a gross sum as the consideration thereof, but of a portion of the proceeds to be realized upon the sale by defendant of the firm’s assets. But defendant contends, and produces the receipt of April 17th, 1882, in support of such contention, that a settlement was had between the parties at or about that date. If this fact be true, and, as before shown, the weight of evidence upon the present trial is strongly in its favor, it would dispense with any accounting. The alleged fact of a settlement out of court having been agreed upon and consummated, will be the first thing to be determined upon the new trial to be ordered in this case.
Furthermore, outside of the questions already discussed, it seems that, according to the hooks of the firm, which, during the whole period of its active business, were kept by the plaintiff, the partnership conies out in debt, not to the plaintiff, but to the defendant. Plaintiff is obliged to allege payments outside of those contained in the books in order, even on his own theory, to bring defendant out a debtor. He testifies that firm moneys in considerable amounts were paid to the defendant directly, and that of such payments no [443]*443memoranda were made in the books. His explanation is given at page 28:
“ Q. Why did you not keep an account on your books of those amounts which, you have testified to went into the hands of the defendants?
“ A. He, Mr. Andrews, said he would keep account of it, and not to put it on the books, and when he said that, I never put it on my books.”
This statement may of course be true, but taken in connection with all the other facts in the case, the court or referee, upon a new trial, might reach the conclusion that the books of the firm were not only correct but complete, even if it was found that the alleged instruments of settlement were forgeries and that no settlement ever took place.
The judgment must be reversed and a new trial ordered, with costs to abide the event.