Tex. Co v. Phillips

• Decision Date: 11 April 1934
• Docket Number: No. 315.,315.
• Citation: 174 S.E. 115,206 N. C. 355
• Parties: TEXAS CO. v. PHILLIPS.
• Court: North Carolina Supreme Court

174 S.E. 115

206 N. C. 355

TEXAS CO.

v.PHILLIPS.

No. 315.

Supreme Court of North Carolina

April 11, 1934

.

.

Appeal from Superior Court, Cabarrus County; Harding, Judge.

Action by the Texas Company against Charles W. Phillips, and counterclaim by de-fendant. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action brought by plaintiff to recover from the defendant $290.75. Allegations of the complaint, in part, are as follows: "(2) That the defendant was employed by the plaintiff, as its agent, to sell and deliver gasoline and other products of The Texas Company and to collect for and remit same. (3) That the defendant, as such agent, received and collected, or was otherwise possessed of divers sums of money from divers persons, within three years from the date of the summons in this action, and after deducting all credits due the defendant, there still remains due and owing to the plaintiff from said defendant, the sum of $290.75."

The answer of defendant, in part, is as follows: "(2) That defendant was employed by the plaintiff as its salesman, to sell and deliver gasoline and other products of The Texas Company and collect for same, and to report and turn over the amount collected by him to the plaintiff's Concord agent, which he did; except as herein admitted, the allegations of paragraph 2 of plaintiff's complaint are expressly denied. (3) That it was the duty of defendant, when a sale was made, to make out an order or memorandum thereof in duplicate and to deliver one copy thereof to the customer and to turn one copy over to plaintiff's Concord agent, which he did; except as herein admitted, the allegations of paragraph 3 of plaintiffs complaint are expressly denied." The defendant set up no plea in bar.

The defendant denied the indebtedness and set up a counterclaim of $120. An order of reference by Judge Clement, at the August term, 1930, is as follows:

"This action having been called and it appearing to the Court that the trial of the issues of fact requires the examination of a long account: It is, therefore, ordered that a compulsory reference be had and that W. H. Beckerdite be, and he is hereby appointed Referee to hear and determine the issues both of law and fact in this cause and report his findings to this Court. To the above order both plaintiff and defendant except.

"J. H. Clement"

The report of the referee is as follows: "To the Superior Court of Cabarrus County: The undersigned having been appointed as a Referee to hear this cause and report his findings of fact and law, files the following report: The cause was heard and a transcript of evidence, together with exhibits filed and introduced as evidence, is herewith transmitted, and from the evidence I find the following facts: (1) The defendant was appointed as agent for the plaintiff and in accordance with his duties as such agent, delivered merchandise to various customers, and collected for such deliveries of merchandise. (2) That the defendant delivered the merchandise represented by the tickets introduced in evidence and I find as a fact that the defendant failed to pay over and account for a sum in excess of $290.75, which said sum was collected for merchandise delivered as agent for the plaintiff. (3) That the defendant subscribed for certain stock and paid from time to time to plaintiff to apply on said stock subscription the total sum of $120.00; that said stock was not delivered to defendant by plaintiff. (4) That by reason of his failure to account for collections for merchandise, and after applying as a set-off, the sum paid on his stock subscription, defendant is indebted to plaintiff in the sum of $170.75. Conclusions of Law: From the foregoing findings of fact, I conclude and find that the plaintiff is entitled to judgment against the defendant in the sum of $170.75, and costs of this action. Respectfully submitted, this August 4, 1933.

"W. H. Beckerdite, Referee

"Filed August 4, 1933."

To the report of the referee, the defendant filed exceptions and tendered two issues, but nowhere does it appear in the record that he demanded a jury trial upon the issues tendered. The judgment of the court below is as follows: "This cause coming on to be heard, counsel for plaintiff and counsel for defendant being present in open court, counsel for plaintiff moves the court for judgment confirming the report of the Referee. Counsel for the defendant ore tenus made demand for a jury trial on the issues set out in exceptions of the defendant to the report of the Referee. Upon inspection of the report of the Referee and the exceptions filed by the defendant to the report of the Referee and the order appointing the Referee and exceptions made to such appointment, the Court is of opinion that the defendant has waived his right to trial by a jury, for that no demand for trial by jury has been made in apt time as required by statute and the opinions of the Supreme Court construing such statute, and the defendant excepts, to the order of the Court holding that the...