Farmers Cooperative Exchange, Inc. v. Scott

132 S.E.2d 161, 260 N.C. 81, 1963 N.C. LEXIS 644
CourtSupreme Court of North Carolina
DecidedJuly 19, 1963
StatusPublished
Cited by3 cases

This text of 132 S.E.2d 161 (Farmers Cooperative Exchange, Inc. v. Scott) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers Cooperative Exchange, Inc. v. Scott, 132 S.E.2d 161, 260 N.C. 81, 1963 N.C. LEXIS 644 (N.C. 1963).

Opinion

PARKER, J.

Defendants assign as error the order of compulsory reference. Defendants state in their brief:

“It is the defendants’ position in this matter that the compulsory reference could not be ordered by the court of its own motion until such time as the plea in bar of accord and satisfaction had been ruled upon. In this case, the defendants point out that there were two distinct controversies, one as to the right of the plaintiff to recover of the defendants under any circumstances as the result of the plea in bar of accord and satisfaction, and the other controversy as to the amount of recovery in the event of the right to recover at all as (sic) established.”

Defendants objected to the order of compulsory reference at the time it was entered, but did not except to it, and proceeded with the trial before the referee. By objecting to the order of compulsory reference when entered, and by, after the referee’s report was filed, filing in apt time exceptions to particular findings of fact made by the referee, tendering issues and demanding a jury trial on each issue tendered, defendants complied with procedural requirements to preserve their right to a jury trial. Bartlett v. Hopkins, 235 N.C. 165, 69 S.E. 2d 236. Defendants have had a jury trial.

Defendants’ exception to the order of compulsory reference appears only in their assignments of error. Exceptions which appear nowhere in the record, except under the assignments of error, are ineffectual, since an assignment of error must be supported by exception duly noted. Beasley v. McLamb, 247 N.C. 179, 100 S.E. 2d 387; Barnette v. Woody, 242 N.C. 424, 88 S.E. 2d 223; Suits v. Insurance Co., 241 N.C. 483, 85 S.E. 2d 602.

During the trial by jury Joseph R. Marks, a witness for plaintiff, testified, inter alia, on direct examination: “It is true that I was manager of the ECX Store in Goldsboro and I was manager at the time the sales ticket for $96.00 was made. This sale to Mr. Scott was made under my control and supervision.” The record then shows: “Defendant objects. Objection overruled: Exception No. IB.” Defendants assign this as error. In respect to this exception defendants state in their brief: “The defendants further argued to the Court that the lower Court erred when, after having ruled that a compulsory reference was necessary and the matter was back before the Court with proper exceptions and objections having been made to the referee’s report and the matter was then before the Court to be heard did not rule upon the defendants’ plea in bar.” There is nothing in the record to show that defendants’ counsel made any such argument [88]*88at the trial before Judge Paul and a jury. Manifestly, this cannot be considered as an exception to the order of compulsory reference when made. The court submitted to the jury Issue 5, an issue as to defendant Raymond A. Scott’s plea of accord and satisfaction, and the jury answered the issue, No. This assignment of error is overruled.

In Lumber Co. v. Pemberton, 188 N.C. 532, 535, 125 S.E. 119, 121, the Court said:

“Defendant in apt time objected to the order of reference and is therefoi’e not deprived of his right -to trial by jury of the issue of facts which he has joined with the plaintiff.
“Having duly excepted to the order, and upon appeal assigned same as error, defendant presents to this Court, for review, the decision of the court below as a matter of law, contending that it was error to order a compulsory reference, for that the answer contains a general denial and sets up a plea in bar of plaintiff’s right to recover in this action. Defendant having objected to the reference, and excepted to the order signed by the judge, had the option to appeal at once, if he was so minded, or to await final judgment, having preserved his objection by exceptions noted in apt time.”

To the same effect: McIntosh, N. C. Practice and Procedure, 2d Ed., Vol. I, sec. 1407, pp. 787-8.

It cannot be said as a matter of law that plaintiff’s cause of action does not require the examination of a long account. G.S. 1-189. Defendants, by not excepting to the order of compulsory reference when made and by proceeding with the trial before the referee, have not preserved the right to challenge it upon the ground that it should not have been entered before the alleged plea of accord and satisfaction had been passed on, or any other plea in bar they may contend is asserted in Raymond A. Scott’s answer. Graves v. Pritchett, 207 N.C. 518, 177 S.E. 641, relied on by defendants, is not in point. In that case an order of compulsory reference was ordered, to which both sides excepted.

In addition, a serious question is presented as to whether the answer of Raymond A. Scott, liberally construed, shows that the plea in bar of accord and satisfaction extends to the whole cause of plaintiff’s action, or merely to the state of the account between plaintiff and defendants since 26 November 1957. However, it is not necessary to decide this, because defendants did not except to the order of reference when made.

Raymond A. Scott, doing business under the trade name of Scott Poultry Company and Scott’s Farm, had three accounts with plain[89]*89tiff: (1) a special secured feeder account, No. 107; (2) a broiler account, No. 108; and (3) an open account, No. 106. Prior to 26 November 1957 plaintiff sold and delivered to Raymond A. Scott over a period of more than two years a substantial amount of chicks, feed, and supplies, which, according to the nature of the sale, were charged to the account for which they were ordered. Plaintiff brought an action on the broiler account on 28 January 1958 against Raymond A. Scott, which ended in a consent judgment against Raymond A. Sicott in the amount of $2,472.99, plus interest in the amount of $105.10, which judgment with the costs Scott paid. On 26 March 1958 plaintiff instituted an action against Raymond A. Scott on the open account claiming an unpaid balance due it in the sum of $6,536.98, which action is now pending. The instant case is an action brought on the special secured feeder account, No. 107. Plaintiff and the defendants offered evidence in support of the allegations in their pleadings.

Joseph R. Marks, manager of plaintiff’s store in Goldsboro during the years 1956, 1957, and 1958 and a witness for plaintiff, testified on cross-examination that the feed sold to Raymond A. Scott by plaintiff under his contracts was sold as feed would be sold to the public in general. He was then asked by defendants’ counsel: “During the period October 5, 1956 to November 26, 1957, do you know the price of feed that was sold by you to the public in general?” He replied: “No, sir.” He was then asked: “Gan you get it for me?” He replied: “Yes, sir.” He was then asked: “And will you?” He replied: “Yes, sir.” Plaintiff objected to this line of questioning. The court sustained the objection. Defendants except and assign this as error. They contend they were “attempting to establish the price of feed sold to the public in general so the jury could get some idea about the costs of the feed sold to Raymond Scott.” Defendants have not put this excluded evidence in the record so that we can see whether or not its exclusion was prejudicial to them, consequently this exception is without merit, and is overruled. Board of Education v. Mann, 250 N.C. 493, 109 S.E. 2d 175. In addition, neither defendant has averred in his or her answer that plaintiff’s charges for feed delivered to Raymond A.

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Bluebook (online)
132 S.E.2d 161, 260 N.C. 81, 1963 N.C. LEXIS 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-cooperative-exchange-inc-v-scott-nc-1963.