Barcroft & Co. v. Roberts & Co.
| Decision Date | 31 October 1884 |
| Court | North Carolina Supreme Court |
| Parties | BARCROFT & CO. v. ROBERTS & CO. |
CIVIL ACTION, tried upon exceptions to a referee's report, at Fall Term, 1884, of BUNCOMBE Superior Court, before Graves, J.
The action was brought on the 21st of October, 1878, to recover the sum of $390.95 due on account for goods sold by the plaintiffs to the defendants on the 17th of January, 1870, payable in sixty days from the date of the purchase, and at fall term, 1878, the defendants in their answer alleged payment in full.
At spring term, 1880, the defendants by leave of court filed an amended answer, in which they set up that more than three years had elapsed since the cause of action accrued, and at spring term, 1883, by consent, it was ordered that all the issues involved in the case be referred to A. F. Summey, as referee, with directions to report to the next term. The report was accordingly filed, and is as follows:
Findings of fact--“G. M. Roberts & Co. and G. M. Roberts had dealings with Barcroft & Co., commencing in April, 1869.
G. M. Roberts & Co. purchased of the plaintiffs various bills of goods, &c., amounting in the aggregate to $1,509.81, during that period, the first bill being sold 6th April, 1869, and the last bill 17th January, 1870.
The defendants have paid in various payments extending from 15th January, 1870, to August, 1875, $1,266.13, leaving a balance due 26th August, 1875, of $243.18.
The credit entered the 15th January, 1870, for $238.37 was the net proceeds of the $246 draft, the cost of collecting the same being $7.63, and there was no draft paid for said amount of $238.37.
The defendant, G. M. Roberts, has claimed from the first that he paid two drafts, one for $240, and one for $238.37.
W. M. Cocke, Jr., attorney for the plaintiffs, to whom this matter was originally entrusted for settlement, delayed bringing an action because of the repeated promises of the defendant, G. M. Roberts, to settle the matter and pay whatever balance might be due; and the further promise of G. M. Roberts or J. L. Henry, who was the attorney for the defendants, that they, the defendants, would not rely upon the statute of limitations.
The defendants have received credit for all the payments they have made.
No judgment has heretofore been obtained or docketed against the defendants upon the amount declared for in the complaint, and the debt due the plaintiffs has not been satisfied as alleged by the defendants.
The amount sued for in the complaint, $391.95, is erroneous, and in excess of the amount due as principal; but the sum of $243.18 is the principal amount due.
The money receipted for as per receipt filed has been paid over to the plaintiffs, and cannot be set up against the claim declared for.”
Conclusions of law--“The claim of the plaintiffs is not barred by the statute.
The defendants owe the plaintiffs the sum of $243.18, with interest thereon from the 26th day of August, 1875, and the plaintiffs are entitled to judgment against the defendants for the sum of three hundred and sixty-three dollars and twelve cents, of which sum $243.18 is principal, and $119.94 is interest, calculated from the 26th day of August, 1875, to 19th November, 1883, and for costs of this action.” (Signed by the referee.)
The defendants thereupon filed the following exceptions to the referee's report, which were heard at spring term, 1884:
1. That the referee erred in his finding of fact “that W. M. Cocke, Jr., attorney for the plaintiff, to whom the matter was originally entrusted for collection delayed bringing an action because of the repeated promises of the defendant, G. M. Roberts, to settle the matter and pay whatever balance might be due, and the further promise of G. M. Roberts or J. L. Henry, that they, the defendants, would not rely upon the statute of limitations,” in that no promise of defendants, or either of them, or of their attorney, was shown to have been within three years next preceding the bringing of this action, nor were said promises, if any, in writing, nor were said promises, if made within three years, sufficient in law to repel the statute of limitations.
2. That the referee erred in his finding of fact “that the defendants received credit for all the payments they have made,” in that he does not allow the defendants credit for the sum of $500 paid by the defendants to the plaintiffs' attorney September 28, 1872, as shown by the receipt of said attorney, offered in evidence before the referee, and now on file in the records in this cause.
3. That the referee erred in his finding of law “that the claim of the plaintiffs is not barred by the statute of limitations,” when as a matter of fact appearing on the record in this cause, more than three years had elapsed, prior to the bringing of this action, and no promises, verbal or written, were shown to have been made within said three years.
The court below sustained the exceptions and rendered judgment for the defendants, and the plaintiffs appealed.
Messrs. Jones & Hardwicke, for plaintiffs .
No counsel for defendants.
The reference to Summey was a reference under THE CODE, and it was the duty of the referee to report the evidence, his findings of fact and his conclusions of law. And it was then the duty of the judge, upon exceptions filed by the defendants in this case, to review the findings of the referee upon the facts and law. The judge should then find the facts himself upon the evidence, and his conclusions of law upon his findings. His findings of fact, upon appeal to this court, are conclusive; and his conclusions of law upon them are alone reviewable. Green v. Castlebury, 70 N. C., 20.
But where the judge does not make a special finding of the facts, it is presumed in such case that he accepts the findings of the referee.
In the evidence reported by the referee, we find an exhibit marked “A,” which one of the plaintiffs testified was a true exhibit of all the credits to which the defendants were entitled. The exhibit is as follows:
“PHILADELPHIA, July 12th, 1883.
Messrs. G. M. ROBERTS & C...
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Bridges v. Stephens
...before the six years had expired." To the same effect in all respects is the decision of the supreme court of North Carolina, in Barcroft v. Roberts, 91 N.C. 363. also, Joyner v. Massey, 97 N.C. 148, 1 S.E. 702; Haymore v. Commissioners, 85 N.C. 268; Hill v. Hilliard, 103 N.C. 34, 9 S.E. 63......
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Bridges v. Stephens
...before the six years had expired." To the same effect in all respects is the decision of the supreme court of North Carolina in Barcroft v. Roberts, 91 N. C. 363; Joyner v. Massey, 97 N. C. 148, 1 S. E. 702; Haymore v. Commissioners, 85 N. C. 268; Hill v. Hilliard, 103 N. C. 34, 9 S. E. 639......
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Robertson v. Jackson
...report, his honor below assumed, at the outset, that the findings and rulings of the referee were prima facie correct ( Barcroft v. Roberts, 91 N.C. 363; Green Jones, 78 N.C. 265); and, in the absence of any objection or exception, the same were properly adopted as the findings of the court......
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Robertson v. Jackson
...his honor below assumed, at the outset, that the findings and rulings of the referee were prima facie correct (Bar-croft v. Roberts, 91 N. C. 363; Green v. Jones, 78 N. C. 265); and, in the absence of any objection or exception, the same were properly adopted as the findings of the court (M......