The exception to finding of fact no. 23, made by the court, raises two questions: (1) Was the court authorized to find any fact in addition to the facts agreed; (2) if so, were the agreed facts sufficient to support the factual inference (finding no. 23) which the court drew from the agreed facts?
The agreement in this case provides: “It is agreed that the foregoing facts shall constitute and be the evidence in this case and that trial by Jury is hereby waived and the Judge shall upon said facts determine the rights and liabilities of the parties hereto/’
In a controversy without action the court is without authority to find additional facts, Greensboro v. Wall, 247 N.C. 516, 101 S.E. 2d 413; nor may it do so when the parties have agreed upon facts which they deem determinative of the controversy. This limitation of authority prohibits the drawing of factual conclusions from the evidentiary facts. Smith v. Smith, 248 N.C. 194, 102 S.E. 2d 868; Board of Pharmacy v. Lane, 248 N.C. 134, 102 S.E. 2d 832; Eason v. Dew, 244 N. C. 571, 94 S.E. 2d 603; Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E. 2d 898; Sparrow v. Casualty Co., 243 N.C. 60, 89 SE. 2d 800; Marx v. Brogan, 188 N.Y. 431, 11 Ann. Cas. 145; 2 Am. Jur. 384. Especially is this true when the agreement expressly prohibits the court from drawing inferences or factual conclusions. Petros v. Superintendent & Inspector of Buildings, 28 N.E. 2d 233, 128 A.L.R. 1210.
This is not a controversy without action authorized by G.S. 1-250 et seq. The authority of the court, if any, to make findings in addi*29tion bo the facts agreed to by the .parties must be found in the agreement of the parties submitting the controversy to the court.
Litigants may waive a jury trial and permit the court to find the facts. G.S. 1-184. The court must, of course, do so on the evidence. They may agree upon the evidence and permit the court to draw factual conclusions. Here the parties agreed that the stipulated facts “shall constitute and be the evidence” which a jury would hear and then stipulated that a jury trial was waived.
Until .the ultimate fact of due care was determined, no judgment could be rendered, and the agreement with respect to the evidentiary facts was a useless effort. Seminary v. Wake County, 248 N.C. 420, 103 S.E. 2d 472; Ellison v. Hunsinger, 237 N.C. 619, 75 S.E. 2d 884; Tucker v. Ashcraft, 189 N.C. 546, 127 S.E. 531. The practice of stipulating evidentiary facts and permitting the court to find ultimate facts therefrom is not unknown. “If the parties intend that the court shall have authority upon a case agreed to make .such inference, they must make an agreement to that effect as is frequently, if not usually, done in England in making up a ‘special case.’ ” Sawyer v. Corse, 17 Gratt. (Va.) 230; 2 Am. Jur. 385. The agreement authorized the court to find fact no. 23.
We must determine whether the agreed facts were sufficient to support the factual conclusion that Pendleton exercised such care as to relieve him of liability.
If more than one inference can be drawn from the stipulated facts, the answer to the question as to due care was for the jury, or the court on waiver of jury trial. Turnage v. Morton, 240 N.C. 94, 81 S. E. 2d 135; McCrowell v. R. R., 221 N.C. 366, 20 S.E. 2d 352; Warren v. Insurance Co., 217 N.C. 705, 9 S.E. 2d 479; Tucker v. Ashcraft, supra.
What is the obligation assumed by the manager of a warehouse operating pursuant to the provisions of Art. 38, c. 106 of G.S.? The answer is to be found in the present statute considered in the light of its history. Basic provisions of this article were first enacted in 1919, c. 168 P.L. 1919, C.S. 4907 set eq. Sec. 12 of that Act (C.S. 4918) provided: “The said receipt carries absolute title to the cotton, it being the duty of the manager accepting same for storage, by inspection of the register of deeds’ office, to ascertain whether there are on file crop mortgages or liens for rent or laborer’s liens covering said cotton before he accepts same and issues a receipt.” A local manager acting under that Act failed in the performance of his duty if he failed to examine the records for recorded liens, and for loss sustained by breach of his duty he and his bond were liable.
*30The original Aet was amended by c. 137, P.L. 1921. So far as here pertinent, that Act provided: “The said official negotiable receipt carries absolute title to the cotton, it being the duty of the local manager accepting same for storage to satisfy himself as to the title to the same by requiring the depositor of the cotton to sign a statement appearing on the face of the official receipt to the effect that there is no lien, mortgage, or other valid claim outstanding against such cotton, and any person falsely signing such a statement shall be punished as provided for false pretenses, Consolidated Statutes, section four thousand two hundred and seventy-seven.”
The Legislature in a two-year period traveled from one extreme to the other with respect to the duty of a local manager in determining the title to the cotton for storage. Both in 1919 and 1921- it fixed the standard of due care. The standard fixed in 1921 continued to measure the duty of a local manager in receiving cotton for more than thirty years. He was authorized to rely upon a signed statement which,’ if false, was criminal. The agreed facts show that Whedbee signed statements called for in the Commodity Credit Aet. A false statement is by that Act made a crime.
The Legislature in 1955 (c. 523, S.L. 1955) removed the specifications with respect to the manager’s duty. The statute (G.S. 106-442} now reads: “The said official negotiable receipt carries absolute title to the cotton or other agricultural commodity, and it is the duty of the local manager accepting same for storage to satisfy himself that the depositor has good title to the same.”
Appellant would have us construe the present law as equivalent to the original Act which made the local manager an insurer against the recorded liens. We do not so construe legislative intent. Had the Legislature intended to require an examination for recorded liens, it would have been a simple matter to have inserted the language' contained in the 1919 Act.
The statute now requires the local manager to satisfy himself. That implies that he must act as a prudent person and exercise reasonable care under existing conditions. That is the obligation which an employee owes to his employer. Ellison v. Hunsinger, supra; Trustees v. Banking Co., 182 N.C. 298, 109 S.E. 6; Ivey v. Cotton Mills, 143 N. C. 189; 35 Am. Jur. 530; 56 C.J.S. 480, 481.
Whether Pendleton acted under the circumstances of this case as a reasonably prudent person would have acted is a question with respect to which different people can reach different conclusions. Hence the court, acting as a jury, had the duty of answering the question raised by the agreed facts, namely: Did Pendleton exercise that de*31gree of care, under all of the facts, which a reasonably prudent person would have exercised? Its answer determines the controversy since it found Pendleton acted as a prudent person, and the law imposes no greater duty.
The liability adjudged against the defendants Whedbee is primary. The liability of the guaranty fund is secondary. The judgment will be amended to expressly so provide.
Modified and affirmed.
Higgins, J., not sitting.