Warren v. Littleton Orange Crush Bottling Co., 207 N.C. 313 (1934)

Oct. 31, 1934 · Supreme Court of North Carolina

207 N.C. 313

N. W. WARREN v. LITTLETON ORANGE CRUSH BOTTLING COMPANY, INC.

(Filed 31 October, 1934.)

Appeal and Error P a—

Where defendant’s sole exception is to the judgment, and the judgment is supported by the findings of fact to which no exception is taken, the judgment must be affirmed on appeal.

Civil actioN, before Moore, Special J., at Chambers, 15 February, 1934. From Halifax.

This action was instituted to recover the sum of $720.00, which the plaintiff alleges was due the plaintiff by virtue of the terms of a written contract, dated 31 October, 1931. The defendánt denied the indebtedness and alleged that the claim of plaintiff constituted usury.

All parties agreed that the trial judge should find the facts. Accord’ ingly, it was found that the said sum of $720.00 demanded by plaintiff represented interest on a $12,000 note due the plaintiff by O. E. Carter, W. A. Carter, and Mrs.Yerbena Carter, and that said note was part of the original purchase price of certain property purchased by the defendant from the plaintiff, and that the $720.00 “agreed to be paid by the defendant and involved in this suit represented the interest due on the $12,000 balance of the purchase price of said corporate property,” etc. It was further agreed “that the court shall enter judgment for the plaintiff if he shall find from the foregoing facts that the charge of $720.00 is not .an usurious one,” etc. In the judgment entered, the court declared that '“the contract executed by defendant to plaintiff for the sum of $720.00 is not an usurious one, and that the plaintiff is entitled to recover of •defendant the sum of $720.00,” etc.

From the foregoing judgment the defendant appealed. The only exception is as follows: “To the action of the court in signing the judgment as set out in the record, and to the judgment.”

Julian B. Allsbrooh and Cromwell Daniel for plaintiff.

Geo. C. Green for defendant.

Pee CukiaM.

In Wilson v. Charlotte, 206 N. C., 856, it was said: “Tbe only assignment of error in tbe case at bar is tbe ‘signing of tbe judgment, . . . having duly excepted to tbe signing of said judgment.’ If said assignment merely refers to tbe act of signing tbe judgment, it presents no question of law for review. But, upon tbe other band, if it be treated cas an exception to tbe judgment, it presents tbe single question whether tbe facts found or admitted are sufficient to support tbe judgment.’ ”

So, in tbe present case there is no exception to tbe finding of fact that tbe claim was not usurious, and consequently tbe judgment must be affirmed.

Affirmed.