Chesson v. Kieckhefer Container Co.

• Decision Date: 22 September 1943
• Docket Number: 24.
• Citation: 26 S.E.2d 904,223 N.C. 378
• Parties: CHESSON v. KIECKHEFER CONTAINER CO. et al.
• Court: North Carolina Supreme Court

26 S.E.2d 904

223 N.C. 378

CHESSON v. KIECKHEFER CONTAINER CO. et al.

No. 24.

Supreme Court of North Carolina

September 22, 1943

This was an action to recover damages for the alleged breach of contract for the cutting and delivery of pulp wood. The case was here at Spring Term, 1939, reported in 215 N.C. 112, 1 S.E.2d 337, and again at Fall Term, 1939, reported in 216 N.C. 337, 4 S.E.2d 886, where the pertinent facts are set out. On the last appeal error was found and the case sent back for a new trial. Thereafter at January Special Term 1941, of Chowan Superior Court, Judge Grady, then presiding ordered a compulsory reference, to which order both plaintiff and defendants excepted. The referee, from the evidence presented, found that no contract had been entered into between plaintiff and defendants or either of them, and that defendants were not liable. Upon exceptions to the referee's report, filed by the plaintiff, issues were submitted to the jury at April Term, 1943, resulting in verdict for plaintiff and an award of $690.79 damages.

From judgment on the verdict, plaintiff and defendants appealed.

J.H. Hall and J. Henry LeRoy, both of Elizabeth City, for plaintiff.

Z.V Norman, of Plymouth, and W.D. Pruden, of Edenton, for defendants.

Defendants' Appeal.

DEVIN Justice.

Both plaintiff and defendants excepted to the order of compulsory reference entered by Judge Grady, but the decision of the referee being in favor of the defendants, they filed no exceptions to the report. However, the plaintiff did file exceptions to the referee's findings and conclusions demanded jury trial and tendered appropriate issues. The defendants moved that the report of the referee be confirmed. This was denied, and the issues which were raised by the pleadings and pointed by the plaintiff's exceptions to the referee's findings were submitted to the jury upon the evidence which had been considered by the referee, and verdict was returned in favor of the plaintiff. Defendants' motion to confirm the referee's report, on the ground that plaintiff had not preserved his right to trial by jury, was properly denied.

Defendants assign error in the ruling of the court in the trial below with respect to their right to have their objections to certain testimony considered. The question arose out of these facts. It had been agreed, by written stipulation, by counsel for the parties in the hearing before the referee, that in lieu of offering oral evidence the stenographer's transcript of the sworn testimony of the witnesses offered in a previous trial of the case in the Superior Court, together with the exhibits, should constitute the evidence before the referee. When this evidence, which had been presented to and considered by the referee under the stipulation, was offered before the jury in the present trial in the Superior Court, it was ruled that under the terms of the stipulation all this evidence was in without objection, and the court declined to rule on the objections which had been interposed when the testimony was originally offered. Whether the court was correct in its interpretation of the effect of the stipulation need not be decided since upon examination of the record we find that the only objections there appearing were to testimony which was competent for the purpose of corroboration, and the jury was so instructed. Hence defendants' assignment of error based on this ground cannot be upheld. It was not contended that defendants could be heard to offer new objections.

The defendants in their argument and brief question the constitutionality of the statute authorizing compulsory reference as being an infringement upon the right of trial by jury. Right to trial by jury is a basic and fundamental feature of our system of jurisprudence. Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166. In North Carolina this right has been regarded from the earliest times as one of the safeguards of the liberties of the people and as one of the essentials to the due administration of justice. It was provided in our first constitution, in 1776 that: "In all controversies at law, respecting property, the ancient mode of trial, by jury, is one of the best...