Barrett v. Henry

• Decision Date: 31 October 1881
• Citation: 85 N.C. 321
• Court: North Carolina Supreme Court
• Parties: W. A. BARRETT and others v. J. M. HENRY and others.

85 N.C. 321

W. A. BARRETT and others

v.J. M. HENRY and others.

Supreme Court of North Carolina.

October Term, 1881.

APPEAL from an order made at Fall Term, 1880, of ANSON Superior Court, by Avery, J.

The plaintiffs allege that in 1849 Joel Rushing, the intestate of the defendant, Henry, was appointed the guardian of the female plaintiffs, Emeline P. Williams and Margaret Ann Broadaway, and took into his possession their estate which came to them from their deceased father, and died without having accounted to them therefor, and the prayer of the complaint is for an account now to be taken. The defendant Henry substantially admits the guardianship, but avers that his intestate settled with the plaintiffs in his lifetime, and died without owing them anything. That since his appointment as administrator, the said defendant and the plaintiffs, Barrett and wife, agreed to refer all matters of controversy, growing out of such guardianship of his intestate, to the final award of three arbitrators, who, after an examination into all the facts, submitted an award in writing, whereby they charged the estate of his said intestate with the sum of $427.00 as still due to the plaintiff, Emeline P. This sum the defendant paid to said plaintiff and her husband, on the 21st of November, 1874, and took their receipt in writing therefor, with the distinct verbal agreement that it was given in full satisfaction of all her demands against the estate of his intestate. The defendant also set up a counterclaim amounting to several hundred dollars as due the estate of his intestate for board and necessaries furnished the plaintiffs, which was denied in their reply.

At spring term, 1879, the court made the following order: “By consent this cause is referred to the clerk of this court, to take and state an account between the parties and report to the next term.”

The clerk proceeded under the order to take the account confining it by consent to the claim of Mrs. Barrett. The defendant offered in evidence the written award of the arbitrators, and the receipt of the plaintiffs for the money paid them thereunder, which the clerk rejected upon the ground that having agreed to the reference the defendant was precluded from setting up the previous settlement. In his report, the clerk finds the amount due the plantiffs to be $462.20, and gave judgment therefor, to which the defendant took several exceptions, and amongst them to the refusal of the clerk to hear the evidence of his settlement with the plaintiffs.

At fall term, 1880, the court made the following order: “This cause coming on to be heard upon the report of the referee, and it being conceded by counsel that it was a reference by consent of parties, it is ordered by the court on motion of defendant's counsel that the case be re-referred to the clerk, with instructions to hear testimony upon all issues raised by the pleadings and make his report to the next term.” From this order the plaintiffs appealed.

Messrs. Battle & Mordecai and J. A. Lockhart, for plaintiffs .

Messrs. Strong and Pemberton, for defendant .

RUFFIN, J.

It is not to be denied that some confusion, as well as some conflict of authority, has arisen from a failure at times to observe properly the distinction which exists between a mere reference to state an account, as a step preparatory to the trial of a cause, and a trial of the cause by a referee under the provisions of the code.

Ordinarily when an action for an account is entertained by the court, the first thing to be done, after the parties and pleadings are before the court, is, to determine the question whether the plaintiff is entitled to a decree for an account. If the defendant admitting his liability submits to the decree, then it passes as a matter of course, but if he disputes his liability or the plaintiff's right to have the...