Lexington Mirror Co. v. Philadelphia Casualty Co., 153 N.C. 373 (1910)

Nov. 10, 1910 · Supreme Court of North Carolina
153 N.C. 373


(Filed 10 November, 1910.)

1. Reference — Findings—Evidence.

If affirmed by tbe judge, tbe referee’s findings are conclusive when there is any evidence tending to support them.

2. Reference — Jury Trial — Objections and Exceptions — Waiver.

A mere exception to an order of reference is not sufficient to entitle the party excepting to a trial by jury upon an adverse finding of fact by the referee, and this right is waived by his not demanding the jury trial in his exceptions to the report.

Appeal by defendant from W. J. Adams, J., at the August Term, 1910, of DavidsoN. •

E. E. Paper and McRary & McRary for plaintiff.

Walser & Wdlser and Max L. Arnstein for defendant.

Pee CubiaM.

This is an action upon a policy of credit indemnity insurance, by which defendant agreed to indemnify plaintiff against losses on sales to its customers from 25 February, 1908, to 3 August, 1909, and on accounts against solvent customers on its books, 25 February, 1908, for goods shipped since 3 April, 1907. Plaintiff seeks to recover $3,690.04 for losses on two accounts, which it claims are covered by the indemnity clause of the policy. The case was referred and the defendant excepted and demanded a jury trial.

*374The referee reported in favor of tbe plaintiff except as to an account for $548.85, wbicb be found was “outstanding on tbe boobs” 25 February, 1908, and was for. goods shipped since 3 April, 1907, but was not solvent on 25 February, 1908. Plaintiff excepted to tbis finding and tbe court, upon wbat we deem to be competent and sufficient evidence, sustained tbe exception and modified tbe report accordingly.

Tbe referee’s findings of fact, when there is any evidence tending to support them, if affirmed by tbe judge, are conclusive on appeal. Frey v. Lumber Co., 144 N. C., 759; Henderson v. McLain, 146 N. C., 329. We cannot, therefore, sustain tbe exceptions taken to such findings.

Tbe defendant waived its right to a trial by jury by not demanding it when' it filed exceptions to the report of tbe referee. It did not comply at all with tbe rule established by tbis. Court in such cases. Harris v. Shafer, 92 N. C., 30; Yelverton v. Coley, 101 N. C., 248; Driller Co. v. Worth, 117 N. C., 515; Wilson v. Featherstone, 120 N. C., 446; Roughton v. Sawyer, 144 N. C., 766; Ogden v. Land Co., 146 N. C., 443. There was a clear abdication of tbe right in tbis case, as tbe record shows. A mere exception to tbe order of reference is not sufficient, as we have often decided.

We have carefully examined tbe other exceptions and failed to discover any reversible error in tbe rulings of tbe court.

No error.