On the former appeal in this cause, we were of opinion, and so held, that on the facts found by Judge Harris, the lease executed by the claimant, W. A. Royal, to the Safety Transit Lines, Inc., and others, for the bus station at Goldsboro, N. C., was valid, and that the defendant, Safety Transit Lines, Inc., at least, was liable by the terms of said lease, to the claimants in damages, if, as alleged by the claimants, there was a breach of the lease by the Safety Transit Lines, Inc., resulting in damages. We therefore sustained the assignments of error on said appeal based on exceptions by the appellants to the holding by Judge Harris that the lease was not valid, and that for that reason the claim of the claimants should be disallowed. The findings of fact made by Judge Harris, as to whether or not there was a breach of the lease by the Safety Transit Lines, Inc., were inconsistent and conflicting. Indeed, on his holding that the lease was invalid, and not binding on the Safety Transit Lines, Inc., it was immaterial whether or not there had been a breach of the lease. We were unable to determine on the record then before us, whether the judgment, from which the claimants had appealed, should be affirmed or reversed. If there had been a clear and unequivocal finding of fact as to this phase of the controversy, we would have affirmed, or reversed the judgment. If there had been a finding of fact, supported by competent evidence, that there had been no breach, we would have affirmed the judgment, on that ground. In the absence of such finding, we were of the opinion that the cause should be remanded to the Superior Court, “in order that it may be specifically and definitely determined whether there has been a breach of the lease by the Safety Transit Lines, Inc., or its receivers, or the purchaser of the lease at the receivers’ sale.” The cause was remanded in accordance with this opinion, and in accordance with our well-settled practice in such cases. Fulenwider v. Rendleman, 196 N. C., 251, 145 S. E., 722; Gulf Refining Co. v. McKernan, 178 N. C., 82, 100 S. E., 121; Gaylord v. Berry, 169 N. C., 733, 86 S. E., 623; Smith v. Smith, 108 N. C., 365, 12 S. E., 1045; Knott v. Taylor, 96 N. C., 553, 2 S. E., 680.
At the hearing of this cause by Judge Daniels, the receivers moved that the Safety Transit Company, the purchaser of the lease at the *418sale by the receivers of the assets of the defendant, be made a party defendant. There was no error in the refusal of the court to allow this motion. A complete determination of the matters involved in the proceedings to enforce the claim against the receivers did not require the presence of the Safety Transit Company as a party defendant. This company was, therefore, not a necessary party, within the meaning of O. S., 460. At most the Safety Transit Company was only a proper party. The motion was therefore addressed, to the discretion of the court. Its action on the motion is not reviewable. Guthrie v. Durham, 168 N. C., 573, 84 S. E., 859. Indeed, it may be doubted whether in a proceeding to enforce a claim against the receiver of an insolvent corporation, one claiming under the receiver, is even a proper party, on the contention that such party is secondarily liable to the claimant. This cause is not an action to recover damages for breach of a lease contract, but a proceeding to enforce a claim in a receivership.
The receivers further moved for a trial by jury of the issues involved in the claim filed with them by the claimants. At the hearing before Judge Harris, a trial by jury was expressly waived by both the receivers and the claimants, who both agreed that the judge should hear the evidence ■and pass upon the claim. The hearing by Judge Daniels was a continuation of the hearing by Judge Harris. The facts found by Judge Harris and set out in his judgment have not been disturbed. The hearing by Judge Daniels was for the purpose of finding additional facts, in accordance with the direction of this Court. The waiver of a jury trial at the first hearing continued in force until the final determination of all matters involved in the proceeding. There was no error in the refusal of the motion for trial by jury.
The receivers excepted to the judgment rendered by Judge Daniels, and on their appeal to this Court contend that there was error in said judgment for that the claim for damages resulting from the breach of the lease, was premature, and that the damages assessed are excessive in amount. Neither of these contentions can be sustained. The cause of action arose at the date of the breach, which was prior to the date of the filing of the claim. The damages were assessed in accordance with the rule approved in Monger v. Lutterloh, 195 N. C., 274, 142 S. E., 12, and suggested as the proper rule in the instant case by Brogden, J., in his opinion on the former appeal in this cause. See 35 C. J., Art. Landlord and Tenant, sec. 502. We find no error. The judgment is
Affirmed.