dissents.
Mr. Justice Coti-iran: Action against the defendant, Whitmire, as principal, and the other two' defendants, J. P. Smith and P. C. Robertson, as guarantors, for a balance of $788.99, claimed to be due by the defendant, Whitmire, upon a certain contract of employment as a salesman for the plaintiffs, which contract the plaintiffs claimed was guaranteed by the other two defendants.
The defendant, Whitmire, does not appear to contest his liability. The alleged guarantors answered, practically admitting the siging of the paper, but allege that they signed it simply as a recommendation of the honesty and good character of Whitmire, and that, if the plaintiffs hold a paper purporting to be a guaranty on their part, the words of guaranty were inserted into the paper after they had signed it.
The case was referred to the very capable and efficient Clerk of the Court, O. S. Stewart, Esq., who took the testi*45mony offered and filed a report in favor of the plaintiff. The case was then heard by his Honor, Judge Mauldin, who filed a decree reversing the Special Referee as to the alleged guarantors, holding that the prepondenence of the evidence sustained their contention that the words of guaranty were inserted after their signature had been attached.
The plaintiffs offered in evidence without objection the original contract. It is upon a printed form and contains two parts. In the first part is the contract between the plaintiffs and the defendant, Whitmire, in which his employment is effected and certain duties in the collection and remittance of money are detailed. It is dated November 1, 1916, signed by Whitmire and accepted by the plaintiffs on December 2, 1916. Immediately after the signatures of the plaintiffs and Whitmire, within three-sixteenths of an inch from the line upon which they appear, begins the first line of the guaranty. It contains eight lines, printed in exactly the same type as the first part of the contract, and is followed immediately by the names, occupations, and postoffice addresses of the alleged guarantors. There is not the slightest sign of an erasure or insertion of any matter upon the paper. Although the defendants in their answer allege that they only signed a recommendation of the honesty and character of Whitmire, they testify to nothing of this character, but boldly swear that when they signed the paper it was entirely blank between the signature of Whitmire and their own.
I fully recognize the rule so clearly stated by Chief Justice Mclver in the case of Gregory v. Cohen, 50 S. C., 502; 27 S. E., 920, that, while a Circuit Judge has the right to affirm, modify, or reverse the findings of the Master or Referee in a law case, this Court can only review the findings of the Circuit Judge in such a case when his conclusions are based upon an error of law. Of course, if there be no evidence at all in the case to sustain his conclusions, that becomes a question of law reviewable by this Court.
The evidence for the plaintiffs tended to show that they *46first sent to Whitmire a blank form of the contract about December 1, 1916; that in due course they received it back from Whitmire duly executed as it appears today; that they then made inquiry as to the financial standing of the guarantors, which would have been entirely unnecessary if their signatures had been simply recommendations, and accepted the contract on December 2, 1916.
In view of the allegation in the answer that the defendants only signed a recommendation of Whitmire, they are concluded by that allegation. It is entirely inconsistent with their testimony that the space was entirely blank, and renders the last statement practically nugatory.
More than half of the learned Judge’s decree is based upon the proposition that the weight of the evidence was in favor of the defendants for the reason that the plaintiffs should have rebutted the testimony of the defendants with evidence that the paper had not been added to, and concludes with this statement:
“The statement of F. G. Thomas, plaintiff here quoted, goes no further than to set forth that which all the defendants admit and swear. The issue had been squarely made, and no testimony in behalf of the plaintiffs controverts the. vital contention of the defendants save only that a writing' is in evidence.”
I think that the testimony of Thomas went a good deal further than the defendants were willing to “admit and swear,” and that it materially “controverted the vital contention of the defendants.” He testified:
“D. H. Whitmire made application to us for a contract to sell goods which we distribute at wholesale. In response to his application we sent him a contract, which was in blank or unsigned at the time. It was returned to us on November 22, 1916.
“Q. Can you produce this contract (that is, the identical paper forwarded in blank and returned filled out) ? A. Yes, I have it here.
*47“Q. Please make the contract you have produced Exhibit A over your signature for the purpose of identification. A. I have done so. (The original contract, offered in evidence shows upon its face, in the upper left corner ‘Exhibit A,’ and under the signature of ‘E. G. Thomas.’)
“Q. Examine Exhibit A and state whether or not this contract, when received by the firm of Eurst & Thomas, bore the signature of D. H. Whitmire, and at the bottom J. P. Smith and P. C. Robertson, as they now appear on same? A. Those signatures were on the contract when it was received.
“Q. How did you receive it? A. It came to us in the U. S. Mail.
“Q. After receiving it will you state what you did with reference to Exhibit A? A. We made an investigation as to the responsibility of the parties who signed the contract, and, that being satisfactory to us, I made acceptance of the contract, that is, Exhibit A, on December 2, 1916, and gave D. H. Whitmire notice to that effect. * * *
“Q. Will you please attach Exhibit A, which you have identified as the contract between your firm and D. H. Whit-mire and the other parties who signed the same, to your deposition and make it a part of the same and as evidence given by you? A. I have done so.”
I do not see how anything could be plainer than that the witness identified the contract as it stands today as the contract returned by Whitmire with the signatures of the defendants to the guaranty, which goes much further than the fiat denials of the defendants.
The learned Judge has manifestly misconstrued the testimony, and equally manifestly his conclusion is based upon this misconstruction, an error of law.
This misconstruction has also led him into the error of holding that, as there was no evidence controverting the statements of the defendants, the plaintiffs should have offered evidence in rebuttal. As I think the testimony should *48be construed, the plaintiffs could have done no more in reply than they had already done — introduced evidence to show that as the contract was in exactly the shape in which it was when received from Whitmire there could have been no ground for inferring that the plaintiffs would have done the most improbable thing of sending the contract tó Whit-mire with the guaranty not on it, and then when the signatures of the defendants, under a perfectly blank space and, therefore, meaningless, send the contract back to the same printer with the same type to have the guaranty falsely and fraudulently interpolated.
The conclusion of the Judge manifestly, therefore, being based upon two misconceptions of the law, should not be allowed to stand.
It is not improbable, an hypothesis which comports with the high reputation the Circuit Judge has given the defendants, and which doubtless they fully deserve, that they were deceived into signing the paper upon the representation of Whitmire that it was only a recommendation of him, upon which they based their testimony that there was no guaranty upon the contract. It is impossible to reconcile the allegation in their answers that the contract contained a recommendation with their testimony that the space was entirely blank.
I think that the judgment of the Circuit Court should be reversed, and that the report of the Referee be confirmed.