Long v. Honeycutt

149 S.E.2d 579 (1966)

268 N.C. 33

Cornelia Taylor LONG v. George G. HONEYCUTT.

No. 442.

Supreme Court of North Carolina.

August 26, 1966.

*585 Robert M. Bryant, Winston-Salem, for defendant appellant.

Craige, Brawley, Lucas & Horton, by Hamilton C. Horton, Jr., Winston-Salem, for plaintiff appellee.

PARKER, Chief Justice.

Defendant assigns as error the order of compulsory reference. This assignment of error is overruled.

G.S. § 1-189 provides in relevant part: "Where the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: 1. Where the trial of an issue of fact requires the examination of a long account on either side; in which case the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein." It is said in Rudisill v. Hoyle, 254 N.C. 33, 118 S.E.2d 145: "The ordering or refusal to order a compulsory reference in an action which the court has authority to refer is a matter within the sound discretion of the court." Plaintiff alleged in her complaint the obligations of Southeastern on 27 February 1959, which defendant agreed to assume, included $11,707.16 owing to plaintiff for loans made to Southeastern and for other payments made by plaintiff for the benefit of Southeastern. Defendant in his answer denied this allegation of fact in plaintiff's complaint. At the time Judge Armstrong entered his order of compulsory reference, it would seem Judge Armstrong from reading the pleadings could reasonably expect a long and tedious inquiry in respect to loans made to Southeastern by plaintiff and in respect to payments made by plaintiff for the benefit of Southeastern in order to settle the litigation, and he was authorized by G.S. § 1-189 to order a compulsory reference. It may not be said as a matter of law from reading the pleadings that plaintiff's cause of action did not require the consideration of a "long account." This is in line with our following decisions: Perry v. Doub, 249 N.C. 322, 106 S.E.2d 582; Grimes v. Beaufort County, 218 N.C. 164, 10 S.E.2d 640; Texas Co. v. Phillips, 206 N.C. 355, 174 S.E. 115; Fry v. Pomona Mills, Inc., 206 N.C. 768, 175 S.E. 156; Dayton Rubber Mfg. Co. v. Horn, 203 N.C. 732, 167 S.E. 42; Murchison Nat. Bank v. Evans, 191 N.C. 535, 132 S.E. 563. Commercial Finance Co. v. Culler, 236 N.C. 758, 73 S.E.2d 780, relied upon by defendant is clearly factually distinguishable.

Defendant states in his brief that the court was in error "when it refused to allow the defendant to introduce in evidence the list of `Accounts Payable' of the Southeastern Beverage Company since the theory under which the plaintiff seeks to recover is based on her being a creditor of the corporation," and he further states in his brief that the court erred "in refusing to admit evidence of a note which was made out to plaintiff by the corporation and which was assigned by plaintiff to defendant's wife at the same time she executed the contract involved in this case." These assignments of error are overruled for failure to comply with our Rules, because they do not disclose the question sought to be presented without the necessity of going beyond the assignments of error themselves to the record, and such failure to comply with our Rules does not present the exceptions for review. Pete Wall Plumbing Co. v. Harris, 266 N.C. 675, 147 S.E.2d 202; Balint v. Grayson, 256 N.C. 490, 124 S.E. *586 2d 364. And further, an examination of the record shows that the evidence excluded was, if not irrelevant, certainly not prejudicial. Defendant testified: "No list of creditors of the corporation ever submitted to me had Mrs. Cornelia Taylor Long's name appearing on it."

Defendant assigns as error the refusal of the court to allow the testimony of Robert Stockton, an attorney at law, in respect to a conference had in his office with defendant and plaintiff's husband in connection with a contract between plaintiff and defendant with Major Cola Bottling Company, and as to his legal opinion in respect to certain parts of that contract. Defendant states in his brief as follows: "Was the court not in error when it refused to allow the testimony of Robert Stockton to be admitted in evidence when such testimony tended to show that the intention of the parties was for indemnification purposes only?" There is nothing in the record to show that at such conference plaintiff's husband was her agent or authorized to act for her, and plaintiff was not present at the conference. A reading of Mr. Stockton's testimony fails to show that defendant was prejudiced by the court's refusal to admit it in evidence. This assignment of error is overruled.

The other assignments of error made by defendant are formal. The court's charge to the jury is not set forth in the record. Consequently, it is presumed that the jury was instructed correctly on every principle of law applicable to the facts. Jones v. Mathis, 254 N.C. 421, 119 S.E.2d 200.

In the trial below we find

No error.

PLESS, J., took no part in the consideration or decision of this case.