Dayton Rubber Mfg. Co v. Horn

• Decision Date: 21 December 1932
• Docket Number: No. 480.,480.
• Citation: 203 N.C. 732,167 S.E. 42
• Court: North Carolina Supreme Court
• Parties: DAYTON RUBBER MFG. CO. v. HORN et al.

167 S.E. 42

203 N.C. 732

DAYTON RUBBER MFG. CO.

v.HORN et al.

No. 480.

Supreme Court of North Carolina.

Dec. 21, 1932.

Appeal from Superior Court, Mecklenburg County; Cowper, Special Judge.

Action by the Dayton Rubber Manufacturing Company against P. W. Horn and another. The trial judge referred the action to a referee, and defendants appeal.

Affirmed.

The plaintiff alleged that it sold and delivered, at various times, tires, tubes, and advertising materials to the defendant Horn, and that the defendant Newell is liable for the payment of said amount by reason of a contract of guaranty executed by said Horn and Newell, dated November 19, 1930. The amount claimed to be due was $4,772.31, and attached to the complaint was an itemized statement of the account running from September, 1930, to July, 1931. Newell filed an answer admitting that he executed the guaranty agreement, but alleged that the plaintiff was indebted to Horn in a sum greatly in excess of the amount claimed by the plaintiff. Horn filed an answer admitting that he purchased tires, tubes, and advertising materials from the plaintiff between November 19, 1930, and February, 1931, but he set up counterclaims against the plaintiff, alleging in substance that there were three contracts between the parties, and that the plaintiff had breached these contracts, resulting in damage aggregating $26,671.42. The plaintiff filed a reply to the counterclaims, admitting the signing of a letter, dated October 3, 1928, attached to Horn's answer, and of other letters and agreements dated March 12, 1929, April 14, 1930, and July 17, 1930, with reference to the transactions between the parties.

When the cause came on for hearing, the trial judge referred the action to Hon. 0. D. Talliaferro "to report the evidence and his findings of fact and law to this court as provided by statute." The defendants excepted and appealed.

Cochran & McCloneghan and W. C. Davis, all of Charlotte, for appellants.

Tillett, Tillett & Kennedy and F. Grainger Pierce, all of Charlotte, for appellee.

BROGDEN, J.

The defendants assert that the trial judge had no power to order a compulsory reference by virtue of C. S. § 573, for that: (a) The reply constituted a plea in bar; (b) the account was not long or complicated.

The pleadings disclosed a course of dealing between the parties for a substantial period. These transactions involve many items, and. while the methods of doing business and of computing the profit or compensation of plaint...