Williams v. Kearney, 177 N.C. 531 (1919)

March 26, 1919 · Supreme Court of North Carolina

177 N.C. 531

C. S. WILLIAMS v. ISAAC H. KEARNEY and H. C. KEARNEY.

(Filed 26 March, 1919.)

1. Appeal and Error — Case Remanded — References—Accounf—Credits.

It appearing on appeal from a judgment rendered upon the report of a referee that the appellant has not been given advantage of certain material admissions "the case will be remanded for that purpose.

2. New Trials — Appeal and Error — Accounts—Credits—Newly Discovered Evidence.

Where it appears on appeal in an action involving an account between the parties that the judge failed to regard a paid check given by one of them to the other as evidence, and the credit was not allowed, the cheek may be regarded in the Supreme Court as newly discovered evidence and the ease remanded for it to be passed upon.

3. Appeal and Error — Reference—Findings—Case Remanded.

The report of the referee, supported by evidence and approved by the trial judge, is conclusive on appeal; but the Supreme Court may remand the case for additional, more definite or fuller findings as to certain items When such appears to be required.

' Appeal by plaintiff from Calvert, J., at tbe August Term, 1918, of EbANKLIN.

This is an action to recover money alleged to be due by note and by open account, in wbicb tbe defendant pleaded a counterclaim.

Tbe plaintiff alleges in bis complaint tbat tbe defendant is indebted to bim in tbe sum of $10,000 or $12,000, by note and open account, and tbe defendant in bis answer admits part of tbe debt to be due and alleges tbat tbe plaintiff is indebted to bim in tbe sum of about $14,000, due by open account.

Tbe accounts of tbe plaintiff and tbe defendant involve many items and cover several years.

Tbe issues raised by tbe pleadings were tried before a referee and on account stated, and tbey were tben beard by bis Honor on exceptions filed by tbe plaintiff to tbe report, and judgment was rendered in favor of tbe plaintiff for $946.22, with interest from 26 August, 1918, from wbicb tbe plaintiff appealed, contending tbat be was entitled to a larger recovery.

T. T. Hides attorney for. plaintiff.

W. M. Person attorney for defendant.

Per Curiam.

Tbe defendant admits tbat there is a mistake in tbe account against tbe plaintiff of $33.51 for sawing timber, and that be was in possession of tbe McGee farm and was allowed in tbe account $288 for repairs made while in possession, and tbat be was not charged with the rental value of $200.

Tbe judgment must be reformed in these two particulars as tbe mistake as to tbe timber is admitted, and tbe defendant, having bad tbe use and possession of tbe McGee farm, and being allowed for bis repairs, is justly chargeable with tbe rental value.

At tbe bearing of tbe exceptions before bis Honor tbe plaintiff produced a check drawn by himself in favor of .the defendant and showing on its face tbat it bad been given for cotton seed, and contended tbat tbe check bad been collected by tbe defendant, and tbat although be bad been charged with tbe value of tbe cotton seed be bad not been given credit for tbe check.

His Honor, not understanding tbat tbe check was offered in evidence, did not pass on this contention of tbe plaintiff, and to tbe end tbat a true account may be stated, and treating tbe application of tbe plaintiff as in tbe nature of a motion for a new trial for newly discovered evidence, tbe cause- is remanded with tbe direction to bear evidence and find tbe facts, and to allow or disallow tbe credit for tbe check according as tbe facts are found.

Tbe court is also directed to make more specific findings on tbe following contentions:

1. Tbe plaintiff contends tbat tbe purchase price of tbe Higbt land was $3,175.50 and that tbe note executed for a part of tbe purchase money was $3,303.56, and tbat be paid tbe difference between these two amounts and has been allowed no credit therefor.

This”seems to be admitted by the defendant, but the fact is not specifically found by the referee or by the court.

2. The plaintiff contends that he paid for.the Armory lot for the benefit of the defendant and that certain cotton delivered to him and with which he has been charged was in payment therefor, and that this ought to be stricken out or that he ought to be credited with the price of the lot.

We are not able to determine from the report just how far these contentions have been passed upon in the findings of fact, and the court will therefore make additional findings thereon.

The other exceptions of the plaintiff, except as to interest, which has not been pressed upon the argument because interest was not allowed on either account, involve practically findings of fact, supported by evidence, which are conclusive upon us, and the judgment, except as modified by correcting the mistake as to the timber and the rental value of the McGee lot, is affirmed, reserving, however, further modification of the judgment in accordance with the findings upon the three items herein specifically referred to, to wit, the check presented to his Honor, the difference between the note executed and the purchase price of the Hight lot and the items of debit and credit as to the Armory lot.

Remanded.