Dayton Rubber Manufacturing Co. v. Horn

167 S.E. 42, 203 N.C. 732, 1932 N.C. LEXIS 89

• Court: Supreme Court of North Carolina
• Decided: December 21, 1932
• Status: Published

Opinion

Brogden, J.

Tbe defendants assert that the trial judge had no power to order a compulsory reference by virtue of 0. S., 573, for that:

(a) The reply constituted a plea in bar.

(b) The account was not long or complicated.

The pleadings disclosed a course of dealing between the parties for a substantial period. These transactions involve many items, and, while the methods of doing business and of computing the profit or compensation of plaintiff were changed from time to time, the course of dealing was practically continuous. Consequently, the action, in its essential features, involved an accounting. There is no plea in bar, which pulls up the case by the roots, and this is necessary, for the reason that such plea must destroy or defeat the entire claim or demand. Bank v. Evans, 191 N. C., 535, 132 S. E., 563; Bank v. McCormick, 192 N. C., 42, 133 S. E., 183.

The statute empowers a trial judge to order a compulsory reference in cases requiring “the examination of a long account on either side.” The statement of account constitutes approximately twenty pages of the record, made up of thirty invoices, containing in excess of two hundred and fifty items. There is no statutory or judicial definition of a “long account.” Indeed, the expression is perhaps less complicated than any definition thereof. Obviously a correct conclusion as to whether an account was “long” would depend upon the facts and circumstances of a given case. The tendency of Appellate Courts generally is to construe liberally the Reference Statute, and the Court is of the opinion that the account in controversy was correctly classified by the trial judge.

Affirmed.