Burger v. Tatham, 185 N.C. 37 (1923)

Feb. 21, 1923 · Supreme Court of North Carolina

185 N.C. 37

D. C. BURGER v. JOHN A. TATHAM et al. T. C. CRISP et al. v. D. C. BURGER et al.

(Filed 21 February, 1923.)

Appeal and Error — Judgment Vacated — Reference — Pleadings — Procedure.

Held, an order by tbe • Superior Court judge bolding, upon tbe facts stated, that tbe plaintiff could not recover tbe purchase price of lumber, tbe subject of tbe action, but damages alone, and rereferring tbe case, permitting amendments to tbe pleadings, was too drastic and should be vacated; and tbe cause is remanded to tbe end that tbe exceptions filed to tbe referee’s report may be passed upon according to tbe usual course and practice of tbe court in such cases, without regard to said order.

Appeal by plaintiff D. 0. Burger from Broclc, J., at April Term, 1922, of Ohebokee.

Civil action to recover tbe purchase price of certain lumber alleged to have been manufactured and delivered under a logging and sawmilling contract.

Tbe plaintiff D. 0. Burger appealed.

D. Witherspoon and, Dillard & Hill for plaintiff.

Moody & Moody for defendants.

Stacy, J.

Tbe record in these consolidated cases is not in shape for us to determine the rights of the parties. At the November Term, 1921, by consent, the two causes were consolidated and referred to J. D. Mallonee, Esq., as referee, under the law appertaining to references. The referee made his report, to which both sides filed exceptions. At the Spring Term, 1922, his Honor, Walter E. Brock, judge presiding, without passing upon all of the exceptions to the referee’s report, held that the plaintiff could not sue for the purchase price of the lumber, but that he could proceed only in an action for damages. Thereupon, the parties were given an opportunity to recast their pleadings, and the cause was remanded to the referee for further hearing. The plaintiff contends that this order is tantamount to a judgment as of nonsuit upon his original cause of action, as alleged, and that he is unable to proceed without serious injury to his rights. As now advised, we think the order in question is too drastic, and that it should be vacated. The cause will be remanded, to the end that the exceptions filed to the referee’s report may be passed upon according to the usual course and practice in such eases, without regard to the order entered at the Spring Term, 1922.

Remanded with instructions.