UNITED LIBERIA RUBBER CO., by its President, WILLY MOELLER, JR., Appellant, v. JERZY LASZKOWSKI, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued April 5, 1960. Decided May 6, 1960. 1. A decree in equity must be predicated upon the record of the case. 2. When issues of fact are referred to a referee, the court retains a continuing responsibility for the conduct of hearings, the presentation of evidence, and the ultimate determination of the case. 3. Conclusions of fact reported by a referee are determinative only in so far as, in the opinion of the reviewing court, such conclusions are supported by the evidence referred to in the referee’s report. On appeal from a decree upon the report of a referee in equity in an accounting on a partnership agreement, at the request of counsel for appellant and appellee the case was remanded for new trial. Lawrence A. Morgan for appellant. Howard for appellee. MR. JUSTICE MITCHELL Josephus C. N. delivered the opinion of the Court. This proceeding was instituted in equity for proper accounting and other equitable relief. The bill of complaint alleged in substance as follows : 1. That on August is, 1955, petitioner and respondent company reached agreement that petitioner be accepted as one of the partners in their company and function as its vice president with residence in Monrovia, Liberia ; and they agreed further that, whenever petitioner for any reason severed his relationship with the company, he would receive twenty percent of participation value of all of the corporation assets on date of disposition. LIBERIAN LAW REPORTS 75 2. That they further agreed that petitioner would also be entitled to receive in addition to the twenty percent of all assets of the company, fifteen percent of the net profits of all rubber purchased in Liberia and sold at the highest market price in Hamburg. 3. That contingent upon this agreement made between petitioner and the United Liberia Rubber Company, he abandoned all other engagements and came to Liberia, where he organized the work in Monrovia and performed his duties faithfully up to the time his service was discontinued by the company without making payment to him of his twenty percent of the assets of the company or the fifteen percent net profit on the sale of rubber according to their agreement; and that when he made application therefor, he was communicated with by Counsellor K. S. Tamba of counsel for the respondent company, who stated that, in connection with petitioner’s claim against the company, all that remained was to bring the account books of the company up to date in order to ascertain what was equitably and legally due the petitioner. 4. That despite the fact that respondent’s counsel, in his said letter of February io, 1956, admitted to petitioner, that his clients are obligated to pay petitioner a sum of money according to their understanding reached, yet up to the filing of this action –a period of quite nine months expiring since petitioner was requested to withdraw from said company, and eight months since respondents’ counsel promised to ascertain what was equitably and legally due to be paid to the petitioner, respondent had failed and neglected to make settlement, and had also refused to bring up the accounts so that petitioner would be in position to know what is legally due him by said company according to their agreement. 76 LIBERIAN LAW REPORTS And petitioner prayed that respondents, through their president, would be ordered to submit a clear and distinct account of all of the shares and assets of the company, together with the sale of rubber purchased up to January 28, 1956, together with the receipts and invoices showing the quantity of rubber sold, the amount realized therefrom, and the profits for proper accounting. He prayed further that the said respondents be required to name the company to whom the rubber was sold, stating the price of the sale and a statement of account properly authenticated in connection with the assets of the company up to January 29, 1956; and that respondent also be required to declare what is the twenty percent of the value of the assets of the company; and lastly, that the court pronounce in favor of the petitioner his twenty percent value of the assets together with the fifteen percent of the net profit of the sales of rubber purchased up to January 28, 1956, and give a decree commanding respondent to pay unto petitioner the respective amounts of shares and assets with the next profits on the sales of rubber purchased. Respondent, answering petitioner’s bill of complaint, in Counts “1,” “2,” “3” and “4” of his answer, raised dilatory issues which would apply more in law than in equity and which can be regarded as mere technicalities not necessary to be reviewed in this opinion ; but Counts “5,” “6,” “7,” “8” and “9,” which go exclusively to the subject matter, are hereunder quoted to complete laying the groundwork of the case : “5. Because respondent submits as to Count ‘2’ of the petition, that while it is true that petitioner would be entitled to recover fifteen percent of the net profit of all rubber purchased in Liberia and shipped to Hamburg, Germany, yet the rubber bought during the partnership of the petitioner was sold at a tremendous loss, due to the gross con- LIBERIAN LAW REPORTS 77 tributory negligence of petitioner in indiscriminately purchasing any and all sorts of rubber, as will more fully appear from copy of statement received from Hamburg, hereto attached and marked Exhibit ‘A’ to form a part of this answer. “6. And also because respondent submits as to Count `3′ of the petition, that it is willing to give petitioner his twenty percent share participation value of all corporation assets after deducting all expenses and losses proportionately, as in equity and good conscience should be done. “7. And also because respondent submits as to Counts `4′ and ‘5’ of the bill of complaint that same are false and misleading in that, as soon as respondent received the balance sheet from the head office in Hamburg, Germany, respondent through its counsel, Counsellor K. S. Tamba, on October 17, 1956, forwarded a copy of said statement to Counsellor Richard A. Henries of counsel for petitioner, and a request for a meeting with Counsellor Henries in conference, with a view to see what amicable adjustment could be made between petitioner and respondents. “8. And respondent also attaches hereto balance sheets up to January 28, 1956, showing the entire volume of business transacted by the company up to January 28, 1956. “9. And also because respondent submits that Paragraph ‘C’ of the prayer of the petitioner is redundant, in that, according to ‘Settlement of Partnership’ which was submitted to the petitioner, as made profert by him, the twenty percent value of the shares of the company was explicitly stated, and respondent asks this Court to take notice thereof.” Through this answer filed by respondents, it can be clearly seen that they do not deny the petitioner’s right to 78 LIBERIAN LAW REPORTS his claim according to the agreement concluded between them ; nor did they deny that such an agreement did exist; but they have endeavored to set up matters in avoidance, which could have only been satisfied upon proof ; and although the pleadings rested as far as the rebuttal, yet there were no new issues raised in these subsequent pleadings. It was incumbent upon the trial court to have satisfied itself by substantial evidence on all of the issues raised in avoidance by the respondents, so that a just and equitable determination could have been concluded. According to the records before us, a portion of which we shall quote later, this was not done. In disposing of the issues of law, the judge refused to consider facts in connection with the grounds of petitioner’s bill and respondents’ answer before referring the technicalities of the accounts to a referee, which act of the trial judge was arbitrary. He said : “Joining issue with petitioner’s petition, respondent made and filed an answer moving the court on demurrer to dismiss Counts ‘1’ and ‘3’; and in the remaining counts raised issues of facts mostly involving complicated accounts not conveniently comprehensible for a jury to assess or audit for the benefit of a verdict. These were buttressed by subsequent pleadings up to the rebutter. “We do not find these demurrers sufficient in this equitable suit to overturn the petition, hence they are not sustained. “As to the factual issues, since they appear too difficult for the jury to solve for the reason stated, supra, the court hereby appoints Major Clemens, a competent and qualified accountant, as a referee, with instructions that all relevant accounts and other necessary papers on both sides be submitted to him for the purpose of his auditing study, and to submit his award which shall state with particularity the disposition of each item of LIBERIAN LAW REPORTS 79 the accounts so as to satisfy the court as to whether petitioner is entitled to the relief sought or any portion thereof ; and it is so ordered.” This ruling might have stood well if the trial judge had given the referee all facts in connection with the accounts; but on the contrary, the court itself had no knowledge of the facts involved because it had refused to hear the facts; besides that, although a writ of duces tecum had been applied for to have respondents present in court their account books and other necessary papers in connection with the business transaction between them, these books were never produced although the writ was issued and served. Our statute controlling the appointment of a referee provides : “Whenever a case presents complicated accounts which are too difficult or tedious to be examined by a jury, the court may, with or without the consent of the parties, refer such accounts to a referee appointed by the court. The referee’s award shall state with particularity the disposition of each item of the accounts.” 1956 Code, tit. 6, � 622. The law also provides that: “In all actions tried upon the facts without a jury the court shall find the facts specially and state separately its conclusions of law thereon ; and it shall direct the entry of the appropriate judgment on its decision.” 1956 Code, tit. 6, � 659. In the present case, neither had the court found the facts involved before referring the question of the accounts to the referee, nor was he competent to submit an award with particularity and certainty, since the account books were never provided him, upon which only he could have rendered an intelligent and detailed report on the respective items of accounts. The records reveal that Mr. Clemens, the appointed referee, being mindful of his duties, communicated with the court requesting that the respondents 80 LIBERIAN LAW REPORTS be required to produce the account books, receipts, and invoices and the petitioner his agreement of partnership. This request did not claim the favorable response of the court. Consequently, the only tool at the disposal of the referee was the balance sheet and profit and loss statement filed with records in the case, unidentified and without proof being made of the account books being lost or out of the possession of the respondent company. The referee made his report to the court only upon those speculative figures, finding for the petitioner the sum of $19,7oo�29, upon which, against the strong objections of respondents’ counsel, the judge rendered his final decree confirming the referee’s award, and ordered the same paid to the petitioner. A decree of a court of equity is to be construed and restricted in accordance with the pleadings and other parts of the records; but this application of the law does not appear to have been made by the trial court; and innumerable irregularities were committed and untold objections invited, predicated upon which, respondent below, now appellant took exceptions and brought forward a bill of exceptions of four counts which take in the same grounds we have touched in this opinion. This bill is based solely upon exceptions taken against the report of the referee, which report remains subject to review by this Court. A master’s conclusion of fact is to be accepted only so far as, in the opinion of the reviewing court, it is supported by the reasonable inference from all the other principal and subsidiary facts found. Millet v. Temple, 280 Mass. 543, 182 N.E. 921 (1932). At the call of this case, counsel for both parties, in their arguments before this bar directed their attention to the irregularities committed by the trial judge below, and requested this Court to remand the case for a new trial so that the findings might be equitable and just upon the consideration of all of the necessary facts involved. Having carefully examined the records in the case, and LIBERIAN LAW REPORTS 81 having well considered the arguments of counsel, and moreover, desiring to have the case well examined for the purpose of arriving at a just and equitable conclusion, it is our decision that the case be hereby remanded to have preference on the trial docket of the Circuit Court of the Sixth Judicial Circuit, Montserrado County, at its June, 196o, term with instructions that the court will have the parties produce all necessary documents appertaining to the aforesaid accounts, including the agreement of partnership if there be any, account books, invoices, statements, receipts and all other necessary papers therein connected, and dispose of the same in accordance with the facts and the law controlling. Costs in these proceedings are to abide the final determination of the case ; and it is hereby so ordered. Remanded.