Texas Co. v. Phillips, 206 N.C. 355 (1934)

April 11, 1934 · Supreme Court of North Carolina

206 N.C. 355

THE TEXAS COMPANY v. CHARLES W. PHILLIPS.

(Filed 11 April, 1934.)

1. Reference A a—

Wliere defendant sets up no plea in bar, and the pleadings indicate the necessity of examining a long account between the parties, defendant’s exception to an order for compulsory reference will not be sustained. N. 0. Code, 573(1).

3. Reference X) to—

Where a party excepts to an order of reference, and files exceptions to the report of the referee, and tenders issues thereon, but fails to demand a jury trial thereon in apt time as required by statute, he waives his right to trial by jury.

Appeal by defendant from Harding, J., at August Term, 1934, of Cabaertts.

Affirmed.

Tbis is an action brought by plaintiff to recover from tbe defendant, $290.75. Allegations of tbe complaint, in part, are as follows: “(2) That tbe defendant was employed by tbe plaintiff, as its agent, to sell and deliver gasoline and other products of tbe Texas Company and to collect for and remit same. (3) That tbe defendant, as such agent, received and collected, or was otherwise possessed of divers sums of money from divers persons, within three years from tbe date of tbe summons in tbis action, and after deducting all credits due tbe defendant, there still remains due and owing to tbe plaintiff from said defendant, tbe sum of $290.75.”

Tbe answer of defendant, in part, is as follows: “(2) That defendant was employed by tbe plaintiff as its salesman, to sell and deliver gasoline and other products of tbe Texas Company and collect for same, and to report and turn over tbe amount collected by him to tbe plaintiff’s Concord agent, wbicb be did; except as herein admitted, tbe allegations of paragraph 2 of plaintiff’s complaint are expressly denied. (3) That it was tbe duty of defendant, wben a sale was made, to make out an order or memorandum thereof in duplicate and to deliver one copy thereof to the customer and to turn one copy over to plaintiff’s Concord agent, which he did; except as herein admitted, the allegations of paragraph 3 of plaintiff’s complaint are expressly denied.” The defendant set up no plea in bar.

The defendant denied the indebtedness and set up a counterclaim of $120.00. An order of reference by Judge Clement, at the August Term, 1930, is as follows: “This action having'been called and it appearing to the court that the trial of the issues of fact requires the examination of a long account: It is, therefore, ordered that a compulsory reference be had and that W. H. Becker dite be, and he is hereby appointed referee to hear and determine the issues both of law and fact in this cause and report his findings to this court. To the above order both plaintiff and defendant except. J. H. ClemeNt.”

The report of the referee is as follows: “To the Superior Court of Cabarrus County: The undersigned having been appointed as a referee to hear this cause and report his findings of fact and law, files the following report: The cause was heard and a transcript of evidence, together with exhibits filed and introduced as evidence, is herewith transmitted, and from the evidence I find the following facts: (1) The defendant was appointed as agent for the plaintiff and in accordance with his duties as such agent, delivered merchandise to various customers, and collected for such deliveries of merchandise. (2) That the defendant delivered the merchandise represented by the tickets introduced in evidence and I find as a fact that the defendant failed to pay over and account for a sum in excess of $290.15, which said sum was collected for merchandise delivered as agent for the plaintiff. (3) That the defendant subscribed for certain stock and paid from time to time to plaintiff to apply on said stock subscription the total sum of $120.00; that said stock was not delivered to defendant by plaintiff. (4) That by reason of his failure to account for collections for merchandise, and after applying as a set-off, the sum paid on his stock subscription, defendant is indebted to plaintiff in the sum of $170.75. Conclusions of law: From the foregoing findings of fact, I conclude and find that the plaintiff is entitled to judgment against the defendant in the sum of $170.75, and costs of this action. Respectfully submitted, this 4 August, 1933. W. H. BecKEbdite, Referee.

Filed 4 August, 1933.”

To the report of the referee, the defendant filed exceptions and tendered two issues, but nowhere does it appear in the record, that he demanded a jury trial upon the issues tendered. The judgment of the court below is as follows: “This cause coming on to be beard, counsel for plaintiff and counsel for defendant being present in open court, counsel for plaintiff moves tbe court for judgment confirming tbe report of tbe referee. Counsel for tbe defendant ore terms made demand for a jury trial on tbe issues set out in exceptions of tbe defendant to tbe report of tbe referee. Upon inspection of tbe report of tbe referee and tbe exceptions filed by tbe defendant to tbe report of tbe referee and tbe order appointing tbe referee and exceptions made to sucb appointment, tbe court is of opinion tbat tbe defendant bas waived bis right to trial by a jury, for tbat no demand for trial by jury bas been made in apt time as required by statute and tbe opinions of tbe Supreme Court construing sucb statute, and tbe defendant excepts to tbe order of tbe court bolding tbat tbe defendant bas waived bis right to have a jury trial and appeals to tbe Supreme Court.”

Tbe exceptions and assignments of error made by defendant are as follows: “Defendant assigns as an error tbe ruling and order of Judge Clement wherein be orders a reference of tbe case over defendant’s objection. Defendant assigns as an error tbe ruling and order of Judge Harding wherein be bolds tbat tbe defendant bas waived bis right to have a jury trial on tbe issues submitted and tendered with bis exceptions tó tbe report of tbe referee.”

Sartsell & Eartsell for plaintiff.

H. S. Williams for defendant.

ClakksoN, J.

We do not think tbat either one of tbe exceptions and assignments of error made by defendant can be sustained. As to tbe first: N. C. Code, 1931 (Micbie), sec. 573(1), is as follows: “Where tbe parties do not consent, tbe court may, upon tbe application of either, or of its own motion,.direct a reference in tbe following cases: (1) Where tbe trial of an issue of fact requires tbe examination of a long account on either side; in which case tbe referee may be directed to bear and decide tbe whole issue, or to report upon any specific question of fact involved therein.”

Tbe pleading of plaintiff and tbe answer of tbe defendant, indicated “tbe examination of a long account on either side.” Tbe defendant set up no plea in bar. Lumber Co. v. Pemberton, 188 N. C., 532. In Bank v. Evans, 191 N. C., 535 (539), is tbe following: “It is generally agreed tbat tbe civil issue dockets of tbe State are .greatly congested by reason of tbe overwhelming increase in business incident to tbe progress and expansion of commercial and industrial activities, and for this reason, it is perhaps, not amiss to be reminded of tbe practical wisdom contained in an utterance by Faircloth, G. J., in Jones v. Bea- man, 117 N. C., 259: ‘Our statutes relating to trials by referees serve a useful purpose, and must be liberally construed. They aid and simplify the work which would otherwise fall upon the court and jury, and often expedite the litigation and save the parties from trouble and expensive trials, and are a saving in time to witnesses and attorneys.’ ” Driller Co. v. Worth, 117 N. C., 515; Alley v. Rogers, 170 N. C., 538; Baker v. Edwards, 176 N. C., 229; Bank v. McCormick, 192 N. C., 42; Booker v. Highlands, 198 N. C., 282; Mfg. Co. v. Horn, 203 N. C., 732.

As to the second: The defendant did not demand a jury trial upon the issues tendered, by not doing so, it is well settled that a trial by jury is waived. In Cotton Mills v. Maslin, 200 N. C., 328 (329), it is held: “A party who would preserve his right to a jury trial in a compulsory reference must object to the order of reference at the time it is made, and on the coming in of the report of the referee, if it be adverse, he should seasonably file exceptions to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered. Wilson v. Featherstone, 120 N. C., 446, 27 S. E., 124; Yelverton v. Coley, 101 N. C., 248, 7 S. E., 672. This was not done in the instant case. Although a party may duly enter his objection to the order of reference, he may yet waive his right to a jury trial by failing to assert such right definitely and specifically in each exception to the referee’s report and by his failing to tender the proper issues. Alley v. Rogers, 170 N. C., 538.”

It may be noted that the testimony taken before the referee is not in the record, C. S., 577. For the reasons given, the judgment of the court below must be

Affirmed.