Barnhill, J.
The defendant’s demurrer
ore tenus
was properly overruled. The plaintiff alleges that the written contract between him and the defendant under which he was to receive one-sixth of the net profits-derived by the defendant from the performance of its several contracts with the Duke Construction Company was orally extended to include the Chapel and Gymnasium; that he fully performed his part of the contract; that the defendant has breached the contract by failing to pay him the amount due on the Chapel and Gymnasium Buildings; and that by reason of such breach the defendant is now indebted to him in the amount alleged. This is a sufficient statement of a cause of action to repel a demurrer.
Likewise, the judgment of the court denying the defendant’s motion tO' dismiss as of nonsuit is without error. There is sufficient evidence in the record to sustain
prima facie
the allegations in the complaint.
The defendant insists that the order of reference was improper and that its motion to vacate the same should have been allowed for the reason that its further answer contains a plea in bar.
Jones v. Wooten,
137 N. C., 421;
Garland v. Arrowood,
172 N. C., 591, 90 S. E., 766;
Graves v. Pritchett,
207 N. C., 518, 177 S. E., 641;
Ward v. Sewell,
214 N. C., 279, 199 S. E., 28.
A plea in bar which extends to the whole cause of action so as tO' defeat it absolutely and entirely will repel a motion for a compulsory reference and no order of reference should be entered until the issue of fact raised by the plea is first determined. To defeat a reference the plea must be such that if found in favor of the pleader it will operate to bar the entire cause of action and put an end to the case, leaving nothing further to be determined. It must be a plea that denies the plaintiff’s right to maintain the action, and which, if established, will
destroy the action.
Oldham v. Rieger,
145 N. C., 254, and cases there cited;
Alley v. Rogers,
170 N. C., 538, 87 S. E., 317;
Reynolds v. Morion,
205 N. C., 491, 171 S. E., 781, and cases there cited; McIntosh, sec. 523.
The defendant expressly asserts that the contract to pay the plaintiff a percentage of the profits on certain of its contracts did not relate to or include the Gymnasium or the Chapel. The receipt in full satisfaction pleaded in bar was signed after the completion of the Gymnasium, but ten months or more before the completion of the Chapel. Under the contract, if it applied to the Chapel, there was nothing due to the plaintiff from net earnings on that building until after the completion of the building and the net profits were ascertained. The receipt is in satisfaction of “all work and labor done by me or under my supervision.”
In respect to this receipt the defendant assumes inconsistent positions and the contentions made are at cross purposes. It avers that there was no contract to pay the plaintiff any part of the profits derived from the erection of the Chapel or the Gymnasium. At the same time it insists that it was within the contemplation of the parties, when the receipt was signed, that it bound the plaintiff not to claim any further right to profits derived from the construction of either, of these buildings when, at the time, there was nothing due on the Chapel. It can hardly be said that in paying the amount which constituted the consideration for the receipt the defendant was seeking and did procure release from further liability on a contract it insists did not exist or in respect to an amount which was not then due.
It would seem that the referee properly held that this receipt was a bar to any claim of plaintiff to any further interest in the profits derived from the construction of the Gymnasium Building. On the other hand, we are unable to conceive how any reasonable construction of the receipt, under the circumstances, would lead to the conclusion that it bars the plaintiff from any right that he may have to share in the profits earned under the contract to construct the Chapel.
As the defendant’s plea in bar does not pertain to plaintiff’s entire cause of action, the defendant’s exception to the order of reference and its exception to the refusal of the court to vacate the reference were properly overruled.
This leaves but one further question which demands consideration. Has the defendant waived its right to a trial by jury?
Every litigant has the right to have the issues of fact raised by the pleadings and the evidence offered in support thereof determined by a jury. But this right may be waived.
Stacy, C. J.,
speaking for the Court in
Booker v. Highlands,
198 N. C., 282, 151 S. E., 635, clearly and concisely states the procedure which must be pursued in a compulsory reference in order to preserve the right to a trial by jury as follows:
“It may be adduced from tbe authorities that a party who would preserve bis right to a jury trial in a compulsory reference should observe the following procedure:
“1. Object to the order of reference at the time it is made.
Driller Co. v. Worth, supra
(117 N. C., 515);
Ogden v. Land Co.,
146 N. C., 443, 59 S. E., 1027.
“2. On the coming in of the report of the reference, if it be adverse, file exceptions in apt time to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered.
Wilson v. Featherstone,
120 N. C., 446, 27 S. E., 124;
Yelverton v. Coley,
101 N. C., 248, 7 S. E., 672.
“3. If the report of the referee be favorable and unobjectionable, tender appropriate issues based on the facts pointed out in the exceptions, if any, filed to the report by the adverse party and raised by the pleadings, and demand a jury trial on each of the issues thus tendered.
Jenkins v. Parker, supra
(192 N. C., 188);
Baker v. Edwards,
176 N. C., 229, 97 S. E., 16;
Robinson v. Johnson,
174 N. C., 232, 93 S. E., 743.
“4. If the report of the referee be not wholly favorable to either party and both sides file exceptions thereto, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered. But if a jury trial be insured on the determinative issues raised by the pleadings, as in the instant case, by tendering appropriate
issues
based on the facts pointed out in one set of exceptions and by demanding a jury trial thereon, the retender of said issues based on facts pointed out in the other set of exceptions and a jury trial demanded thereon need not be made.
Keerl v. Hayes, supra
(166 N. C., 553.)
“A failure to observe any one of these requirements may constitute a waiver of the party’s right to have the controverted matters submitted to a jury and authorize the judge to pass upon the exceptions without the aid of a jury.” McIntosh, sec.
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Barnhill, J.
The defendant’s demurrer
ore tenus
was properly overruled. The plaintiff alleges that the written contract between him and the defendant under which he was to receive one-sixth of the net profits-derived by the defendant from the performance of its several contracts with the Duke Construction Company was orally extended to include the Chapel and Gymnasium; that he fully performed his part of the contract; that the defendant has breached the contract by failing to pay him the amount due on the Chapel and Gymnasium Buildings; and that by reason of such breach the defendant is now indebted to him in the amount alleged. This is a sufficient statement of a cause of action to repel a demurrer.
Likewise, the judgment of the court denying the defendant’s motion tO' dismiss as of nonsuit is without error. There is sufficient evidence in the record to sustain
prima facie
the allegations in the complaint.
The defendant insists that the order of reference was improper and that its motion to vacate the same should have been allowed for the reason that its further answer contains a plea in bar.
Jones v. Wooten,
137 N. C., 421;
Garland v. Arrowood,
172 N. C., 591, 90 S. E., 766;
Graves v. Pritchett,
207 N. C., 518, 177 S. E., 641;
Ward v. Sewell,
214 N. C., 279, 199 S. E., 28.
A plea in bar which extends to the whole cause of action so as tO' defeat it absolutely and entirely will repel a motion for a compulsory reference and no order of reference should be entered until the issue of fact raised by the plea is first determined. To defeat a reference the plea must be such that if found in favor of the pleader it will operate to bar the entire cause of action and put an end to the case, leaving nothing further to be determined. It must be a plea that denies the plaintiff’s right to maintain the action, and which, if established, will
destroy the action.
Oldham v. Rieger,
145 N. C., 254, and cases there cited;
Alley v. Rogers,
170 N. C., 538, 87 S. E., 317;
Reynolds v. Morion,
205 N. C., 491, 171 S. E., 781, and cases there cited; McIntosh, sec. 523.
The defendant expressly asserts that the contract to pay the plaintiff a percentage of the profits on certain of its contracts did not relate to or include the Gymnasium or the Chapel. The receipt in full satisfaction pleaded in bar was signed after the completion of the Gymnasium, but ten months or more before the completion of the Chapel. Under the contract, if it applied to the Chapel, there was nothing due to the plaintiff from net earnings on that building until after the completion of the building and the net profits were ascertained. The receipt is in satisfaction of “all work and labor done by me or under my supervision.”
In respect to this receipt the defendant assumes inconsistent positions and the contentions made are at cross purposes. It avers that there was no contract to pay the plaintiff any part of the profits derived from the erection of the Chapel or the Gymnasium. At the same time it insists that it was within the contemplation of the parties, when the receipt was signed, that it bound the plaintiff not to claim any further right to profits derived from the construction of either, of these buildings when, at the time, there was nothing due on the Chapel. It can hardly be said that in paying the amount which constituted the consideration for the receipt the defendant was seeking and did procure release from further liability on a contract it insists did not exist or in respect to an amount which was not then due.
It would seem that the referee properly held that this receipt was a bar to any claim of plaintiff to any further interest in the profits derived from the construction of the Gymnasium Building. On the other hand, we are unable to conceive how any reasonable construction of the receipt, under the circumstances, would lead to the conclusion that it bars the plaintiff from any right that he may have to share in the profits earned under the contract to construct the Chapel.
As the defendant’s plea in bar does not pertain to plaintiff’s entire cause of action, the defendant’s exception to the order of reference and its exception to the refusal of the court to vacate the reference were properly overruled.
This leaves but one further question which demands consideration. Has the defendant waived its right to a trial by jury?
Every litigant has the right to have the issues of fact raised by the pleadings and the evidence offered in support thereof determined by a jury. But this right may be waived.
Stacy, C. J.,
speaking for the Court in
Booker v. Highlands,
198 N. C., 282, 151 S. E., 635, clearly and concisely states the procedure which must be pursued in a compulsory reference in order to preserve the right to a trial by jury as follows:
“It may be adduced from tbe authorities that a party who would preserve bis right to a jury trial in a compulsory reference should observe the following procedure:
“1. Object to the order of reference at the time it is made.
Driller Co. v. Worth, supra
(117 N. C., 515);
Ogden v. Land Co.,
146 N. C., 443, 59 S. E., 1027.
“2. On the coming in of the report of the reference, if it be adverse, file exceptions in apt time to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered.
Wilson v. Featherstone,
120 N. C., 446, 27 S. E., 124;
Yelverton v. Coley,
101 N. C., 248, 7 S. E., 672.
“3. If the report of the referee be favorable and unobjectionable, tender appropriate issues based on the facts pointed out in the exceptions, if any, filed to the report by the adverse party and raised by the pleadings, and demand a jury trial on each of the issues thus tendered.
Jenkins v. Parker, supra
(192 N. C., 188);
Baker v. Edwards,
176 N. C., 229, 97 S. E., 16;
Robinson v. Johnson,
174 N. C., 232, 93 S. E., 743.
“4. If the report of the referee be not wholly favorable to either party and both sides file exceptions thereto, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered. But if a jury trial be insured on the determinative issues raised by the pleadings, as in the instant case, by tendering appropriate
issues
based on the facts pointed out in one set of exceptions and by demanding a jury trial thereon, the retender of said issues based on facts pointed out in the other set of exceptions and a jury trial demanded thereon need not be made.
Keerl v. Hayes, supra
(166 N. C., 553.)
“A failure to observe any one of these requirements may constitute a waiver of the party’s right to have the controverted matters submitted to a jury and authorize the judge to pass upon the exceptions without the aid of a jury.” McIntosh, sec. 525.
The plaintiff contends that the defendant has waived his right to trial by jury by reason of the fact that in each exception filed by it there was no specific and definite demand for a jury trial followed immediately by an issue tendered thereon and that its demand for a jury trial comes too late at the end of its exceptions.
This Court has consistently held that in a reference case a litigant who desires to preserve his right to a trial by jury must tender appropriate issues under the exceptions to the referee’s report. Such confusion as exists arises from the interpretation of the word “under” as used in these decisions to mean physically under and immediately below
the exception rather than as meaning “arising upon and relating to” the finding which is the subject of the exceptive assignment of error. Thus the plaintiff interprets the rule. This is a construction which assumes that the language of the opinions relates solely to the mechanics of the procedure.
If the plaintiff’s position is to be sustained it will make the practice . in reference cases, when a party seeks to preserve his right to a jury trial, extremely technical and burdensome. It would convert the issues into questions of fact raised by the report rather than issues of fact raised by the pleadings or, in many instances, require numerous repetitions of the same issue. This is not the intent or the purpose of the former decisions of this Court.
Notwithstanding an order of reference, a determination of the issues of fact raised by the pleadings and evidence in the cause remains as the primary purpose. A jury trial does not extend to every finding of fact made by the referee and excepted to by the parties, but only to issues of fact raised by the pleadings and passed upon by the referee. McIntosh, sec. 525. Questions of fact may not be substituted for issues merely because there is a controversy, as disclosed by the exceptions, as to what the facts are. McIntosh, sec. 525 (4).
Every fact found by the referee, if pertinent, relevant and material, necessarily relates to one of the controverted issues of fact. Correctly interpreted, the rule simply requires the litigant who seeks to preserve his right to trial by jury to tender issues raised by the pleadings based on the facts pointed out in the exceptions, and, as to each issue, to definitely and specifically demand a jury trial thereon, and further, by specific reference, to relate the issue to his exceptions to the findings of fact which bear upon and relate to that particular issue.
An examination of the record discloses that the defendant sufficiently complied with this rule. Immediately after his exceptions and as a part of the same paper writing the following appears.
“Upon the foregoing objections and exceptions to the referee’s report, the defendant tenders the following issues and demands trial by jury on each objection and exception covered by the issues herewith submitted and as to all other objections and exceptions the defendant asks that each and every objection and exception be determined by the court.
“The defendant tenders issues upon the exceptions to the findings of fact by the referee as follows
As illustrative of the issues tendered we quote:
“ExcbptioN No. I to Finding oe Fact No. 9.
“Defendant has lodged its motion to strike findings of fact No. 9, but if motion is overruled then the defendant reserves the right to submit and does submit the issue, as follows:
“Issue: Did the defendant enter into an agreement by which the defendant would employ the plaintiff as foreman of rubble stone masonry and cut stone work and give him a share in the profits derived from all buildings constructed on Duke University Campus ?”
“ExceptioN No. 16 to Finding op Fact No. 20.
“Issue: Did the defendant agree that the contract dated January 14, 1928, should apply to the contracts covering the Gymnasium and Chapel?”
Thus, it appears that the defendant has definitely and specifically demanded a jury trial on exceptions to particular findings of fact made by the referee and has tendered appropriate issues thereon raised by the pleadings, contemporaneously with the filing of the exceptions, giving plaintiff full notice of the facts to be submitted to the jury. When this is done it cannot be fairly said that his demand comes too late. To demand more would impose an unnecessary burden and constitute a resort to useless technicalities — to require less might lead to confusion. The whole purpose of the rule is to clarify and make certain that part of the controversy which is to be submitted to the jury — not to prescribe complex technical procedure with which it is difficult to comply.
The position here assumed is not in conflict with
Gurganus v. McLawhorn,
212 N. C., 397, 193 S. E., 844. There general issues were tendered, some of which did not arise on the pleadings, without any pretense of relating them to the exceptions to the findings of fact.
The judgment below is
Reversed.