June 30, 1921. The opinion of the Court was delivered by This is an action to enforce a judgment of the Probate Court, but involves an accounting between principal and agent. The case was put on calendar No. 1 by the plaintiff's attorney. Upon the call of the case for trial, the substituted plaintiff's attorney moved that the case be referred to a referee to take the account and report his findings thereon to the Court. When the Court found that the account was complicated and obscure, and that it involved an accounting between those standing in a fiduciary relation, the presiding Judge referred the case to a referee.

I. This order of reference presents the first question for this Court. The exception that raises this question cannot be sustained. This action is not an action on an account or judgment, but an action for accounting between principal and confidential agent. The account is complicated and obscure and presents a proper case for a reference to a referee.

II. Both principal and agent are dead. There was a judgment against the agent in favor of the principal. The agent was the general agent of the principal, and paid her money from time to time, but there is no satisfactory evidence to show that the payments were made on account of that judgment, and the referee and Circuit Judge were correct in so holding. *Page 297

This is just one of those unfortunate cases in which two perfectly honorable people, closely allied in blood and mutual confidence, have a part of their business in writing and part in parol. Death stops the parol evidence, and the writing stands.

The judgment is affirmed. Let the report of the referee and the order of the trial Judge be reported.

MR. CHIEF JUSTICE GARY concurs.

MR. JUSTICE WATTS: I dissent. I think judgment should be reversed. It is a legal action pure and simple, and appellant has been denied substantial rights in not having a trial by jury.

MR. JUSTICE COTHRAN.

I concur in this judgment, but think that the exceptions raising the question of the propriety of referring the case should be overruled, not upon the ground stated in the leading opinion: "This action is not an action on an account or judgment, but an action for accounting between principal and confidential agent," for the complaint shows that it was upon a judgment of the Probate Court, but upon the ground that the defendant's answer was practically a demand and an offer for an accounting, by which to demonstrate that the judgment had been paid. The defendant cannot therefore complain if the equitable issue tendered by him, involving, as was developed, a long and intricate account, and transactions between principal and confidential agent or trustee, was remitted for trial to a tribunal admittedly most capable of determining it. Particularly is this true where, as it appeared here, "it would be impracticable for an ordinary jury to comprehend and decide the issues correctly." McCabe v. Mercantile Co.,106 S.C. 25; 90 S.E. 161. *Page 298

The opinion of the Court was delivered by

This is an action to enforce a judgment of the Probate Court, but involves an accounting between principal and agent. The case was put on calendar No. I by'the plaintiff’s attorney. Upon the call of the case for trial, the substituted plaintiff’s attorney moved that the case be referred to a referee to take the account and report his findings thereon to the Court. When the Court found that the account was complicated and obscure, and that it involved an accounting between those standing in a fiduciary relation, the presiding Judge referred the case to a referee.

1, 2 I. This order of reference presents the first question for this Court. The exception that raises this question cannot be sustained. This action is not an action on an account or judgment, but an action for accounting between principal and confidential agent. The account is complicated and obscure and presents a proper case for a reference to a referee.

II. Both principal and agent are dead. There was a judgment against the agent in favor of the principal. The agent was the general agent of the principal, and paid her money from time to time, but there is no satisfactory evidence to show that the payments were made on account of that judgment, and the referee and Circuit Judge were correct in so holding.

*2973 This is just one of those unfortunate cases in which two perfectly honorable people, closely allied in blood and mutual confidence, have a part of their business in writing and part in parol. Death stops the parol evidence, and the writing stands.

The judgment is affirmed. Let the report of the referee and the order of the trial Judge be reported.

I dissent. I think judgment should be reversed. It is a legal action pure and simple, and appellant has been denied substantial rights in not having a trial by jury.

4 5 I concur in this judgment, but think that the exceptions raising the question of the propriety of referring the case should be overruled, not upon the ground stated in the leading opinion: “This action is not an action on an account or judgment, but an action for accounting between principal and confidential agent,” for the complaint shows that it was upon a judgment of the Probate Court, but upon the ground that the defendant's answer was practically a demand and an offer for an accounting, by which to demonstrate that the judgment had been paid. The defendant cannot therefore complain if the equitable issue tendered by him, involving, as was developed, a long and intricate account, and transactions between prinpal and confidential agent or trustee, was remitted for trial to a tribunal admittedly most capable of determining it. Particularly is this true where, as it appeared here, “it would be impracticable for an ordinary jury to comprehend and decide the issues correctly.” McCabe v. Mercantile Co., 106 S. C. 25; 90 S. E. 161.