In re Fowler, 203 N.C. 409 (1932)

Oct. 26, 1932 · Supreme Court of North Carolina

203 N.C. 409

IN THE MATTER OF S. H. FOWLER, Surviving Partner of CAROLINA CREDIT COMPANY.

(Filed 26 October, 1932.)

Appeal and Error J d — Burden of showing error is on appellant.

Where under the terms of a written contract the surviving partner agrees to wind up the affair® of the firm for commissions as fixed by the courts not to exceed that allowed by law, the amount of the compensation fixed by the lower court will not be disturbed on appeal when there is nothing on appeal to show that the amount fixed by the judgment was erroneous in law, the burden of showing error being upon the appellant.

Civil aotioN, before Crammer, J., at April Term, 1932, of CeaveN.

S. H. Fowler and T. G-. Hyman were partners, trading under the firm name of Carolina Credit Company. Hyman died testate on 7 February, 1931, and his widow, Mrs. Harriet L. Hyman, qualified as executrix. After the death of Hyman, Fowler, as surviving partner, undertook to wind up the partnership. On 13 February, 1932, Fowler and the executrix of Hyman entered into a written agreement to the effect that upon payment and delivery to the respective parties of all goods and property allotted to him “each of said parties shall release and discharge the other from liability on account of said partnership, saving and excepting the amount of commissions to be allowed by the court to said Fowler for his services as surviving partner in settling said partnership estate, and as to such commissions it is agreed that whereas, said Fowler claims and has retained out of the assets of said partnership estate the sum of $2,400 for commissions, and said executrix contends that said Fowler is not entitled to so much. It is agreed that said Fowler for his services in settling said partnership estate shall receive such commissions as may be allowed by the court, not to exceed the amount prescribed by law,” etc. The clerk of the Superior Court found the facts substantially as above stated, and also found the amount of receipts and disbursements for various purposes, and allowed Fowler the sum of $1,327.18 as commissions.

Mrs. Hyman filed exceptions to tbe findings of tbe clerk and appealed to tbe judge of tbe Superior Court. Tbe pertinent part of tbe judgment is as follows: “It is now considered by tbe court and ordered and adjudged that said exceptions be and tbe same hereby are sustained except as herein provided; that said S. H. Eowler, surviving partner, for bis services in settling said partnership estate, shall receive, and hereby be is allowed tbe sum of $223.91 as commissions, to be paid out of tbe share of tbe deceased partner,” etc.

From tbe foregoing judgment Eowler appealed.

D. L. Ward, Jr., for Fowler.

B. A. Nunn for executrix.

Per Curiam.

It was expressly agreed between the parties that the commissions to be allowed Fowler, the surviving partner, for services should be determined by the court, it being stated in the contract that Fowler “shall receive such commissions as may be allowed by the court, not to exceed the amount prescribed by law.” Upon appeal from the clerk the trial judge allowed the commissions specified in the judgment. No evidence is contained in the record, and there are no findings of fact made by the trial judge. Hence, there is nothing to indicate that the judgment was based upon a false or erroneous theory of law. Tbe burden is upon the appellant to show error.

Affirmed.