Perry v. Doub

106 S.E.2d 582 (1959)

249 N.C. 322

J. A. PERRY and Eula D. Perry v. Albert DOUB, Trustee, L. A. Doub, Trustee, and Carey N. Robertson.

No. 460.

Supreme Court of North Carolina.

January 14, 1959.

*583 Stanley Winborne, Vaughan S. Winborne, and Samuel Pretlow Winborne, Raleigh, for plaintiffs-appellants.

Mordecai, Mills & Parker, Raleigh, for defendants-appellees.

RODMAN, Justice.

The chronological history of this litigation clearly indicates the desirability of bringing it to a conclusion as early as that is practicable without prejudice to the rights of any of the parties.

*586 Plaintiffs' first assignment of error challenges the right of the court to order a compulsory reference.

The trial judge is by statute, G.S. § 1-189, authorized to order a compulsory reference where the examination of a long account is necessary to settle the controversy. Our statutes authorizing trial by referees are liberally construed to facilitate the work of the court and to simplify the issues to be submitted to a jury when the right to trial by jury is preserved. Haywood County v. Welch, 209 N.C. 583, 183 S.E. 727; Marshville Cotton Mills v. Maslin, 200 N.C. 328, 156 S.E. 484; Murchison Nat. Bank v. Evans, 191 N.C. 535, 132 S.E. 563; Jones v. Beaman, 117 N.C. 259, 23 S.E. 248.

The pleadings show what matters are in controversy. No reference can be ordered before the complaint and answer are filed. Penn Lumber Co. v. McPherson, 133 N.C. 287, 45 S.E. 577; Kerr v. Hicks, 131 N.C. 90, 42 S.E. 532. When the pleadings show that a long or complicated accounting is necessary in order to answer the ultimate issue, the trial judge is vested with authority to order a compulsory reference. Texas Co. v. Phillips, 206 N.C. 355, 174 S.E. 115; Kagey v. Fox West Coast Theatres Corp., 139 Kan. 301, 31 P.2d 67, 92 A.L.R. 286; 45 Am.Jur. 549, 550.

Plaintiffs contend the reference was not authorized because, as they say, only two items were in dispute, one amounting to $3,863.73, and the other amounting to $1,354.49. They concede the latter amount is not a single item but a total of several items; but it was not the mere fact that the controversy ultimately narrowed down to what plaintiffs say was at most some six or seven items. It was the manner in which plaintiffs formulated the complaint. In December 1951 an escrow agreement had been entered into. The amount plaintiffs conceded to be owing was paid by them. The additional sum sufficient to cover the amount claimed by defendant was deposited in escrow. This agreement obligated Robertson to furnish plaintiffs with a statement of the advances claimed to have been made by him. On 17 December 1951 Robertson complied with the agreement and filed a statement showing some thirty-one charges to plaintiffs' account. With this statement of the account in their possession plaintiffs elected not to directly challenge the items they now contend they should not be held liable for, but, exercising their right, constructed their own statement of the account. Some of the items not in dispute are nevertheless disputed as to which loan they are properly chargeable to. We are convinced from our examination of the pleadings that such a complicated accounting was indicated as authorized the trial judge in his discretion to order a reference. The fact that both plaintiffs and defendant excepted and each demanded a jury trial does not, as plaintiffs suggest, demonstrate that a compulsory reference was improvidently ordered.

Plaintiffs' second assignment of error is to the judgment nonsuiting their fifth cause of action. The facts there stated are not a cause of action, but, as held on plaintiffs' prior appeal, a mere basis on which to award special and punitive damages for breaches of the contracts set out as the first and second causes of action. It may well be doubted if plaintiffs offered any evidence which would support an award of special or punitive damages; but if it be conceded that such evidence was offered, no harm has come to plaintiffs in not submitting the question to the jury. When the jury answered the first and second issues and thereby found defendant had performed his contracts, no damages of any character could be awarded against him.

It is conceded that a trial judge in the exercise of his discretion may set a verdict aside, Walston v. Greene, 246 N.C. 617, 99 S.E.2d 805; Frye & Sons, Inc. v. Francis, 242 N.C. 107, 86 S.E.2d 790, but plaintiffs *587 insist the record here shows an abuse of discretion with respect to the third issue. A critical examination of the record fails to disclose anything which supports the assertion. The statutory penalty (G.S. § 24-2) for charging usurious interest is imposed only when a corrupt intent exists to take more than the legal rate. Bailey v. Inman, 224 N.C. 571, 31 S.E.2d 769. Each side offered evidence supporting their position with respect to defendant's intent in making the charge. The judge manifestly thought plaintiffs had failed to carry the burden imposed on them. A subsequent jury was unable to agree on that question.

The tender made by defendant authorizing the entry of judgment placing plaintiffs "in the same financial position as if the jury had answered issue No. 3 in plaintiffs' favor, or Yes" left no controverted fact for determination. Since all controverted issues had been settled by jury verdict or by concession, Judge Sharp was authorized and under the duty to enter a final judgment. The concession made by defendant and the judgment based thereon, rendered by Judge Sharp, effectively eliminated the exception taken by plaintiffs to the order of Judge Carr setting aside in his discretion the verdict on the third issue.

Plaintiffs were entitled to an adjudication of their rights. They were not entitled to insist on how their rights should be ascertained. They were not entitled to require the court to sit for a week and hear evidence to establish a fact which, if established, would give them no greater right than defendant was willing to accord. Plaintiffs' exception to the rendition of the judgment based on defendants' stipulation is without merit. The amount which plaintiffs are entitled to receive from the fund on deposit is $1,245.03, and the clerical error noted by us will be corrected accordingly.

Our examination of the charge and the several exceptions thereto fails to show prejudicial error. The court properly placed the burden of proof on plaintiffs to establish their allegations that the notes given are wanting in consideration.

The judgment will be amended to correct the clerical error herein noted and as so amended is

Affirmed.