Perry v. Doub, 460

• Decision Date: 14 January 1959
• Docket Number: No. 460,460
• Citation: 106 S.E.2d 582,249 N.C. 322
• Court: North Carolina Supreme Court
• Parties: J. A. PERRY and Eula D. Perry v. Albert DOUB, Trustee, L. A. Doub, Trustee, and Carey N. Robertson.

Page 582

106 S.E.2d 582

249 N.C. 322

J. A. PERRY and Eula D. Perry v. Albert DOUB, Trustee, L. A. Doub, Trustee, and Carey N. Robertson.

No. 460

Supreme Court of North Carolina.

Jan. 14, 1959

Stanley Winborne, Vaughan S. Winborne, and Samuel Pretlow Winborne, Raleigh, for plaintiffs-appellants.

Mordecai, Mills & Parker, Raleigh, for defendants-appellees.

RODMAN, Justice.

The chronological history of this litigation clearly indicates the desirability of bringing it to a conclusion as early as that is practicable without prejudice to the rights of any of the parties.

Plaintiffs' first assignment of error challenges the right of the court to order a compulsory reference.

The trial judge is by statute, G.S. § 1-189, authorized to order a compulsory reference where the examination of a long account is necessary to settle the controversy. Our statutes authorizing trial by referees are liberally construed to facilitate the work of the court and to simplify the issues to be submitted to a jury when the right to trial by jury is preserved. Haywood County v. Welch, 209 N.C. 583, 183 S.E. 727; Marshville Cotton Mills v. Maslin, 200 N.C. 328, 156 S.E. 484; Murchison Nat. Bank v. Evans, 191 N.C. 535, 132 S.E. 563; Jones v. Beaman, 117 N.C. 259, 23 S.E. 248.

The pleadings show what matters are in controversy. No reference can be ordered before the complaint and answer are filed. Penn Lumber Co. v. McPherson, 133 N.C. 287, 45 S.E. 577; Kerr v. Hicks, 131 N.C. 90, 42 S.E. 532. When the pleadings show that a long or complicated accounting is necessary in order to answer the ultimate issue, the trial judge is vested with authority to order a compulsory reference. Texas Co. v. Phillips, 206 N.C. 355, 174 S.E. 115; Kagey v. Fox West Coast Theatres Corp., 139 Kan. 301, 31 P.2d 67, 92 A.L.R. 286; 45 Am.Jur. 549, 550.

Plaintiffs contend the reference was not authorized because, as they say, only two items were in dispute, one amounting to $3,863.73, and the other amounting to $1,354.49. They concede the latter amount is not a single item but a total of several items; but it was not the mere fact that the controversy ultimately narrowed down to what plaintiffs say was at most some six or seven items. It was the manner in which plaintiffs formulated the complaint. In December 1951 an escrow agreement had been entered into. The amount plaintiffs conceded to be owing was paid by them. The additional sum sufficient to cover the amount claimed by defendant was deposited in escrow. This agreement obligated Robertson to furnish plaintiffs with a statement of the advances claimed to have been made by him. On 17 December 1951 Robertson complied with the agreement and filed a statement showing some thirty-one charges to plaintiffs' account. With this statement of the account in their possession plaintiffs elected not to directly challenge the items they now contend they should not be held liable for, but, exercising their right, constructed their own statement of the account. Some of the items not in dispute are nevertheless disputed as to which loan they are properly chargeable to. We are convinced from our examination of the pleadings that such a complicated accounting was indicated as authorized the trial judge in his discretion to order a reference. The fact that both plaintiffs and defendant excepted and each demanded a jury trial does not, as plaintiffs suggest, demonstrate that a compulsory reference was improvidently ordered.

Plaintiffs' second assignment of error is to the judgment nonsuiting their fifth cause of action. The facts there stated are not a cause of action, but, as held on plaintiffs' prior appeal, a mere basis on which to award special and punitive damages for breaches of the contracts set out as the first and second causes of action. It may well be doubted if plaintiffs offered any evidence which would support an award of special or punitive damages; but if it be conceded that such...