Penland v. Red Hill Methodist Church, 227 N.C. 699 (1947)

March 19, 1947 · Supreme Court of North Carolina

227 N.C. 699

RHEA PENLAND, Trading as BURNSVILLE CONSTRUCTION CO., v. RED HILL METHODIST CHURCH and RABURN YELTON, W. B. GREENE, RUSSELL WOODY, H. S. GORTNEY, WILLARD YOUNG, DONT WHITSON, WALTER GARLAND and NATHAN YELTON, Trustees and Members of the Building Committee of RED HILL METHODIST CHURCH.

(Filed 19 March, 1947.)

Appeal by plaintiff from Phillips, J., at September Term, 1946, of Mitchell.

Affirmed.

Civil action to recover balance alleged to be due on contract to erect a cburcb building for defendants in which the defendants plead a counterclaim for damages for breach of contract, heard on report of referee.

McBee & McBee and Watson, Fonts <& Watson for plaintiff, appellant.

W. G. Berry and Charles Hutchins for defendants, appellees.

Per Curiam.

The contract is admitted. Defendants plead breach thereof and resulting damages for which they pray judgment. Hence the issues as raised by the pleadings are those raised by the further answer and counterclaim. Plaintiff failed to tender the issues thus raised and to demand jury trial thereon. Booker v. Highlands, 198 N. C., 282, 151 S. E., 635; Brown v. Clement Co., 217 N. C., 47, 6 S. E. (2d), 842. Hence trial by jury was waived.

The court below found that the evidence sustained the findings made by the referee, adopted them as its own, and rendered judgment for defendants on their counterclaim in the amount found to be due. A careful examination of the record fails to disclose error therein.

Affirmed.