Peyton v. Hamilton-Brown Shoe Co.
| Decision Date | 18 November 1914 |
| Docket Number | 408. |
| Citation | 83 S.E. 487,167 N.C. 280 |
| Parties | PEYTON v. HAMILTON-BROWN SHOE CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Richmond County; Shaw, Judge.
Action by F. L. Peyton against the Hamilton-Brown Shoe Company. Judgment for plaintiff, and defendant appeals. No error.
This action was brought to recover the amount alleged to be due under a contract between the parties, by which defendant employed plaintiff as its traveling salesman in parts of North Carolina and South Carolina; the territory being designated by reference to a map described therein. Plaintiff was to receive 2 3/4 per cent. commissions on all goods sold by him and shipped into his territory; to have a drawing account or guaranteed monthly salary of $150, payable at the end of each month, and to be paid all his necessary traveling expenses; the salary to be paid during the time he was at work in his territory, and the contract to continue in force for the period of one year. The contract was dated August 18 1911, and was, by mutual consent, terminated July 27, 1912 plaintiff having resigned his position on the latter date. Plaintiff received his commissions, salary, and expenses from time to time during the performance of the services required of him under the contract, and now claims that on July 27 1912, when he resigned, that he had sold goods for the defendant to responsible purchasers, which were thereafter shipped to them by defendant, amounting in value, according to ruling prices of defendant, to $46,528, the commission on which, at the stipulated rate, is $1,285.51, for which he demands judgment. The parties disputed with each other as to the true amount due the plaintiff on account of the transactions between them, and on July 27, 1912, they came to a settlement, in which defendant promised to pay the agreed commission on all sales of goods which had been made by plaintiff in his territory, and which had not then been shipped by defendant, but which were shipped afterwards, the same to be paid when the goods were so shipped, and it is in the sale of these goods, as stated, that he claims his commission. The court submitted one issue to the jury, as to the amount of defendant's indebtedness to plaintiff, and they returned a verdict for $375.50. Judgment was thereupon rendered, and the defendant appealed.
Defendant failing to move for a reference before impaneling the jury, waived his right.
J. P. Cameron, of Rockingham, for appellant.
M. W. Nash, of Hamlet, for appellee.
WALKER J. (after stating the facts as above).
It appears that, after the pleadings had been read and the jury impaneled, defendant requested the court to order a reference of the case, which was refused, and to this the first exception was taken. The motion for a compulsory reference should have been made before the impaneling of the jury. It was due then, in the regular order of procedure, and by passing that stage in the trial without acting, the defendant waived his right; he having impliedly accepted the method of trial by jury, instead, by his silence. Such motions must, of course, be submitted in apt time. A like motion was held to have been properly refused, for this reason, in Hughes v. Boone, 102 N.C. 137, 9 S.E. 286. See Kerr v. Hicks, 131 N.C. 90, 42 S.E. 532.
The statute provides that, "where the parties do not consent, the court may upon the application of either, or of its own motion, direct a reference," in the cases enumerated therein. Revisal, § 519. Whether this is a discretionary power of the judge, we need not decide, as we are of the opinion that this case does not fall within any of the classes where such a reference is allowed. No long or complicated account was necessary to decide the issue between the parties or for the information of the court, and the case, it seems, was tried very easily and fairly without it.
It was competent for the plaintiff, while testifying in his own behalf, to state the quantity of goods sold by him, in order that it might be subsequently shown how many of them had been shipped under his contract and settlement of July 27, 1912, and for a like reason it was not improper that he should be permitted to refer to section 4 of the complaint and answer to make his testimony intelligible. They were preliminary matters, and the ruling of the court did not make the sections so referred to evidence in the case. We see no objection to the same witness stating what he claimed was owing by the defendant, and his explaining the items. Nor was there any valid objection to his stating the items which defendants had wrongfully charged to him or debited him with on their books; as something had to be deducted from the amount they had promised to pay him. It was necessary that this should appear, in order to ascertain the correct balance. All this covers the second, third, fourth, fifth, and sixth exceptions.
As to his being allowed to state the amount of commissions on $103,000 at 2 3/4 per cent., if he had answered it, we cannot see what harm would have resulted to defendant; but his answer was not responsive to the question, and there is no...
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