Referee's findings convinces me that he made no mistake in concluding that a partnership arrangement existed between Shaw and Poinsett although it is true as the petitioners allege that there was no specific agreement that they should share the debts of the business. This may readily be implied from the conduct of Poinsett and his actions as indicated by all of the testimony.
The second category is not directly relevant to the issue before the Referee which concerns itself not with how far Shaw and Poinsett had bound the other by his contracts but rather relates itself only to the transactions under investigation herein which were between Shaw and Poinsett themselves.
The third category reiterates the claim that Shaw and Poinsett had no partnership relationship at the time but only contemplated one in the future. In this respect, as stated before, the finding of the Referee that there was a then present relationship is amply justified.
The petitioners also argue that in March of 1941, Shaw and Poinsett arrived at a settlement of their mutual dealings and that the mortgages were given to Poinsett as an accord and satisfaction. They submit that the real estate mortgage having been given on Shaw's Columbus property had such a status and that its integrity was further buttressed by the fact that the real estate mortgage was a sealed instrument. The Referee's finding that no consideration supported the accord and satisfaction because a partnership existed between Poinsett and Shaw and there was no money due to Poinsett does not bend to the petitioners' allegations. The seal upon the real estate mortgage imports consideration and raises a presumption that it was present. The Referee correctly disposed of this contention by his conclusion based upon evidence that the presumption had been overcome by a showing that actually there was no consideration.
The petitioners also challenged the Referee's finding that the chattel mortgage was void because they contend that the statement made in the affidavit that the consideration for the mortgage was for back rent and advances while perhaps not strictly in accordance with the fact was made in good faith and only technically inaccurate. Again this argument cannot overcome the clearcut finding of the Referee that the affidavit of the chattel mortgage was substantially inaccurate, sufficiently to vitiate it under the New Jersey law.
Only in the event that the conclusions of the Referee are clearly erroneous or are shown to have been the result of mistake should they be disturbed by the court. I am convinced that there is ample testimony to support the findings of the Referee and that his conclusions are accurately drawn therefrom.
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