PLAINTIFF’S APPEAL.
after stating tbe ease: Tbe exceptions of the plaintiff cannot be allowed.
*491As to tbe claim for interest, it is alleged in tbe complaint tbat tbe partnership “continued in active business up to and including tbe year 1899, wben it ceased active business,” and tbe judgment appealed from, based on tbe findings of tbe jury, allows interest from 1 January, 1900, wbicb according to tbe complaint was tbe time of tbe dissolution. There is no claim tbat tbe defendant agreed to pay interest.
“A partner is not entitled to interest on capital wbicb be contributes to tbe firm, although bis contribution is greatly in excess of tbat of bis copartners, unless they have agreed be may have interest.” Oye., vol. 30,- p. 698.
Tbe eases cited in tbe note fully sustain tbe text. Sheppard v. Smith, 20 Ala., 750; Carpenter v. Hathaway, 87 Cal., 439; Tutt v. Land, 50 Ga., 350; Thompson v. Noble, 108 Mich., 25; Lamb v. Rowan, 83 Miss., 53; Smith v. Smith, 18 R. I., 722; Hart v. Hart, 117 Wis., 663; Rodgers v. Clement, 162 N. Y., 422.
In tbe last ease tbe Court says: “If tbe moneys advanced by tbe plaintiff to tbe firm were contributions of capital or additions to plaintiff’s capital, then be was not entitled to interest on tbe same, since be must rely upon tbe profits of tbe business to compensate him for tbe investment, unless there was a special agreement between tbe partners tbat interest should be allowed.”
Tbe reason applies with greater force to tbe claim for interest on profits, wbicb cannot be ascertained until after tbe dissolution.
Tbe question was considered by Chief Justice Ruffin in Holden v. Peace, 39 N. C., 228. He says: “Tbe general rule for interest, on accounts in ordinary dealings, is tbat it is chargeable only after an account has been rendered, so that tbe parties can see wbicb is tbe debtor and what be has to pay, unless it be agreed otherwise, or tbe course of business shows it to have been otherwise understood. This applies still more forcibly as between partners, because their accounts cannot be fully made up between them without, in truth, taking all tbe accounts of tbe firm — in other words, without a dissolution; and *492it is impossible to tell before wbat either would be bound to pay or entitled to receive. Therefore; if the parties mean' that interest should be charged on the accounts of the partners, for dealings in the shop and money withdrawn for personal expenses or other things, from year to year, the course is to come to an agreement to that effect, and then for balances appearing upon the individual accounts annually or oftener, according to the agreement to that effect, charges of interest are made from time to time, or if omitted, will be allowed in making the final settlement. If there be no agreement upon the subject, it must be understood that the parties, especially when they have no separate property, were aware that each must draw from the firm the means of supporting himself and his family, and that an exact equality could not be expected in those matters, and, therefore, that it was not intended that interest should be charged during the partnership.”
The exception to the ruling that the claim for amounts advanced by the plaintiff is barred by the statute of limitations is equally untenable.
It does not appear that there were any debts to be paid or collected at the time of the dissolution of the partnership, and nothing remained to be done except to settle. The relationship between the parties then became adverse, arid the right of action accrued to the plaintiff.
The case of Murray v. Penny, 108 N. C., 324, seems to be directly in point. In that case the partnership between the plaintiff and defendant was formed in 1884, and dissolved in 1885. The action was commenced in 1890 to recover $400, which the plaintiff alleged to be due him on a fair accounting, and the defendant relied on the limitation of three years as a defense. It was held that the plaintiffs cause of action was barred, and the Court said: “Unless there is some agreement, express or implied, fixing a period for accounting beyond the time of dissolution, or circumstances that render an accounting ■impossible, the statute begins to run from the time the partnership is in fact dissolved. Wood on Lim., sec. 210. During the existence of the partnership the partners mutually sustain the *493relation of trustee and cestui que trust. Where there are debts still due the firm, and after dissolution one of the partners is to collect them, or other circumstances showing that a settlement is impossible, the relation of trust between the partners may continue till some act puts them in adversary position to each other. Nothing of that kind is in evidence. There is nothing to show that any debts were outstanding and uncollected, or that any trust remained to be executed. On the contrary, it appears that an immediate settlement was possible, and that both partners agreed that it should be made at once.”
We have passed on the exception of the plaintiff as to the statute of limitations, but it is doubtful if he can raise the question on this record, as the pleá of the statute by the defendant casts the burden on the plaintiff to prove that his cause of action is not .barred (Hussey v. Kirkman, 95 N. C., 64), and a jury trial being waived on this issue, the judge, without any exception to evidence, has found the fact against the plaintiff.
We find
No error. DEFENDANT'S APPEAL.
The first exception of the defendant is to the refusal of the court to overrule a finding of fact made by the referee.
The exception is not based upon the ground that there was no evidence to support the finding, but that there was no competent evidence, and a proper consideration of it would require us to go through the entire record, and pass on the admissibility of evidence, when there is no assignment of error that incompetent evidence had been admitted.
This we are not required to do. If the appellant desired to preserve the exception, it was his duty to enter his exception to the evidence before the referee, and to except also to the finding of fact, and to have both exceptions reviewed by the judge, and then on appeal to embrace in his assignments of error the exceptions to the evidence.
We find, however, on an examination of the evidence of the plaintiff, that he testified to facts justifying the finding, and *494tbe rale is well settled tbat we cannot review the action of the judge when there is any evidence.
It was the duty of the judge to submit the issues to the jury, upon demand of the plaintiff, as he had not waived his right to a jury trial, and the exception of the defendant to such action cannot be sustained.
The fourth, fifth, sixth, and seventh assignments of error are to -rulings within the discretion of the judge; and the eighth assignment is formal for the purpose of preserving the other exceptions.
The third assignment would not be free from difficulty if it had not been held that the claim of the plaintiff for advances made to the firm was barred by the statute of limitations; but with this decision in favor of the defendant, he cannot complain that he was not allowed to offer evidence in addition to that introduced before the referee on the claim.
The general rule is, undoubtedly, as his Honor held, that upon the coming in of a report, under a compulsory reference, the issues are to be determined by the jury on the evidence before the referee; but if an amendment is allowed, after the report is filed, containing an additional charge, the parties ought to be allowed to offer evidence as to such charge, because it was not embraced in the reference.
The defendant has not, however, suffered any injury by the refusal to allow him to introduce the evidence, as there is no recovery against him on the additional matter contained in the amendment.
We find no error of which the defendant can complain.
No error.