Dent v. English Mica Co

• Decision Date: 13 October 1937
• Docket Number: No. 239.,239.
• Citation: 193 S.E. 165,212 N.C. 241
• Court: North Carolina Supreme Court
• Parties: DENT. v. ENGLISH MICA CO.

193 S.E. 165

212 N.C. 241

DENT.

v.ENGLISH MICA CO.

No. 239.

Supreme Court of North Carolina.

Oct. 13, 1937.

Appeal from Superior Court, Mitchell County; J. H. Clement, Judge.

Action by Ray T. Dent against the English Mica Company, wherein defendant filed a counterclaim or cross-demand. From an adverse judgment, defendant appeals.

Affirmed.

Civil action to recover for services rendered under contract of employment and for damages resulting from the breach of said contract.

Upon denial of the contract (under which plaintiff served as plant manager of defendant corporation), and counterclaim or cross-demand for moneys overpaid the plaintiff, there was a reference under the Code, apparently by consent, though no order of reference appears on the record. The report of the referee, which appears only in the judgment, finds for the plaintiff on his first cause of action ($5,842.54 with interest), against him on the second, and denies the defendant's counterclaim.

Upon exceptions duly filed, the matter came on for hearing at the July-August term, 1937, Mitchell superior court, and resulted in adoption and confirmation of the referee's report. Defendant appeals, assigning errors.

Hamilton Douglas, Jr., of Atlanta, Ga., and Alfred S. Barnard, of Asheville, for appellant.

McBee & McBee, of Bakersville, and Harkins, VanWinkle & Walton, of Asheville, for appellee.

STACY, Chief Justice.

It is the established rule of procedure in this jurisdiction that the findings of fact made by a referee, adopted and concurred in by the judge of the superior court, are conclusive on appeal if they are supported by any competent evidence. C. S. § 578; State v. Jackson, 183 N.C. 695, 110 S.E. 593; Dorsey v. Mining Co., 177 N.C. 60, 97 S.E. 746; Board of Com'rs v. Abee Bros., 175 N.C. 701, 96 S.E. 31; Hudson v. Morton, 162 N.C. 6, 77 S.E. 1005; Thornton v. McNeely, 144 N.C. 622, 57 S.E. 400; Hunter v. Kelly, 92 N.C. 285. Indeed, it was said in Boyle v. Stallings, 140 N.C. 524, 53 S.E. 346, 348, that the Supreme Court has "no power to review the conclusions of fact as found by the referee and sustained by the judge, unless it appears that such findings have no evidence to support them." The rule, of course, is otherwise in the superior court where the judge, upon exceptions, may make his own findings of fact. Carolina Mineral Co. v. Young, 211 N.C. 387, 190 S.E. 520; Anderson v. McRae, 211 N.C. 197, 189 S.E. 639; Maxwell v. R. R., 208 N.C. 397, 181 S.E. 248; Dumas v. Morrison, 175 N.C. 431, 95 S.E. 775.

Here, the findings of fact made by the referee are amply supported by competentevidence, and his conclusions of law, based thereon, are correct. These have been adopted and concurred in by the judge. Hence, upon the record, the judgment will be upheld.

Before the referee and in the court below, the position of the defendant was that no contract of employment existed between the plaintiff and the defendant during the time for which plaintiff sues. On appeal, the position of defendant is that the contract is not...