Godwin v. Hinnant

108 S.E.2d 658 (1959)

250 N.C. 328

J. H. GODWIN v. Hoover HINNANT.

No. 250.

Supreme Court of North Carolina.

May 20, 1959.

*660 Lamb, Lamb & Daughtridge and Gardner, Connor & Lee, Wilson, for plaintiff appellant.

Robert A. Farris, Wilson, for defendant appellee.

*661 RODMAN, Justice.

Plaintiff assigns as error the order of Judge Fountain overruling his motion for an affirmance of the amended report of the referee for that no exceptions had been filed thereto within the time allowed by Judge Paul.

Judge Fountain had a right, in his discretion, to extend the time for filing the exceptions. The time limited in Judge Paul's order was not intended to have greater force than the statutory provision limiting the time to file exceptions. G.S. § 1-195. It did not impair the authority given to Judge Fountain by G.S. § 1-152 to extend the time. White v. Price, 237 N.C. 347, 75 S.E.2d 244; Dunn v. Marks, 141 N.C. 232, 53 S.E. 845; Timber Co. v. Butler, 134 N.C. 50, 45 S.E. 956; Kerr v. Hicks, 131 N.C. 90, 42 S.E. 532; Gilchrist v. Kitchen, 86 N.C. 20.

The exception to Judge Fountain's order extending the time for defendant to file exceptions is not sufficient to challenge the sufficiency of defendant's exceptions and the issue thereafter filed by him in support of his demand for a jury trial.

Plaintiff might have raised the question of defendant's right to a jury trial by excepting to the submission of any issue to the jury. We find no exception in the record sufficient to present this question. A party, by his failure to comply with prescribed procedure, may waive his right to a jury trial. Likewise, a party may waive his right by failing to object to the submission of an issue to the jury.

The statute providing for a compulsory reference, when it appears an accounting is necessary to determine the rights of the parties, rests on the assumption that this procedure will eliminate items not controverted and will enable the parties, by appropriate exceptions to the referee's findings, to bring into sharp focus the items which are in controversy.

As said by Davis, J., in Yelverton v. Coley, 101 N.C. 248, 7 S.E. 672, 673: "If this were not so, the tedious delay and confusion attending the investigation and examination of a long account by a jury, which it was the purpose of the reference to avoid, would be as great after the reference as before, thus rendering the reference a mockery."

A dissatisfied party is not permitted to take broadside exceptions to the findings. His exceptions, to be helpful and therefore effective in a just settlement of the controversythe court's objective, must be both specific and directed to a particular finding of fact. Bartlett v. Hopkins, 235 N.C. 165, 69 S.E.2d 236; Brown v. E. H. Clement Co., 217 N.C. 47, 6 S.E.2d 842; Gurganus v. McLawhorn, 212 N.C. 397, 193 S.E. 844; Marshville Cotton Mills v. Maslin, 200 N.C. 328, 156 S.E. 484; Booker v. Town of Highlands, 198 N.C. 282, 151 S.E. 635; Ziblin v. Long, 173 N.C. 235, 91 S.E. 837; Ogden v. Appalachian Land & Lumber Co., 146 N.C. 443, 59 S.E. 1027; Wilson v. Featherstone, 120 N.C. 446, 27 S.E. 124; Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427.

That the exceptions filed by defendant lack that definiteness necessary to present clearly defined issues is apparent. Finding No. 3 of the amended report incorporates by reference the itemized statement of account for the year 1954. That account consists of charges segregated in classes (1) for groceries purchased, (2) fertilizers, poisons, and seeds, (3) monies loaned defendant. The account details payments made from sales of cotton and tobacco. The crop sales were made by plaintiff and defendant.

The burden rested on plaintiff to establish the charges. Does defendant challenge the amount charged for groceries? We find no definite statement to that effect in defendant's evidence. To the contrary, there is evidence which may amount to an admission as to the correctness *662 of this item. The burden, of course, rested on plaintiff to prove the correctness of each controverted charge; but the burden rested on defendant to establish payment beyond those admitted by plaintiff. Defendant's evidence contains an inference that full credit has not been given for monies derived from the sales of the 1954 tobacco crop. If defendant's assertion of nonliability rests on his claim of additional payments, he had the burden of establishing those payments, and the court should have so instructed the jury.

The defendant testified that he can read. We find no evidence that he was illiterate. The law imposed no greater burden on one to keep an accurate record of debits and credits than on the other. It is not suggested that any trust relationship existed. It was error to charge, even as a contention of the defendant, that the law imposed a duty on plaintiff to keep records "not only in an intelligent manner, but in a manner that would disclose and reveal that they were accurate and could be relied upon by the parties involved."

Plaintiff also excepted to the failure of the court to declare and explain the law arising upon the evidence in the case. The court charged the burden was on plaintiff "to satisfy you upon the evidence and by its greater weight that his allegations are true and correct." This statement of the law was followed by a resume of the contentions of the parties, but nowhere did the court attempt to apply the law to the facts.

The provisions of G.S. § 1-180 are mandatory. A failure to comply is prejudicial error. Brooks v. Honeycutt, N.C., 108 S.E.2d 457; Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913; Keith v. Lee, 246 N.C. 188, 97 S.E.2d 859; Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Watson v. Sylva Tanning Co., 190 N.C. 840, 130 S.E. 833; Wilson v. Wilson, 190 N.C. 819, 130 S.E. 834.

The prejudicial effect of the failure to declare the law as applied to differing factual contentions is well illustrated by defendant's exception to Finding No. 6. Plaintiff testified he agreed to provide defendant with a tobacco harvester for which defendant would pay five cents per stick of tobacco harvested. The referee so found, and, finding defendant harvested 4,748 sticks, fixed the amount owing to plaintiff as rent at $237.40. Defendant excepted to this finding. As a witness he denied an agreement to pay five cents per stick. He asserted that he was only obligated to pay a fair rental value for the machine. What was the contract? The jury necessarily had to determine that question before it could determine the amount of the rent. If the jury found in accordance with plaintiff's testimony, supported as it was by other witnesses, the court should have directed the jury to fix the rent at $237.40, or five cents per stick. This one item exceeds the amount which the referee found to be owing for the year 1955. Nowhere in the charge did the court advert to this controverted factual situation.

Because the exceptions failed to bring into focus the controverted items, the task imposed on the judge in charging the jury became more difficult; but that fact did not relieve him of the duty to declare and explain the law arising on the evidence.

New trial.