McEwen v. . Loucheim

20 S.E. 519, 115 N.C. 348

• Court: Supreme Court of North Carolina
• Decided: September 5, 1894
• Status: Published

Opinion

Clark, J.:

The Judge having made no specific findings of fact, he is presumed to have adopted those of the referee. Battle v. Mayo, 102 N. C., 413. The plaintiff sued for commissions on the bill of goods sold to Carroll & Co. While this was disallowed because the sale was made in territory not embraced in the contract, it being found as a fact that the trip to make the sale was made at the request of the defendant, the referee properly allowed the plaintiff his expenses and reasonable compensation for his time. Stokes v. Taylor, 104 N. C., 394. There was no error in allowing the commissions on the sale to Yarborough, which was according to th"e‘ contract. There were allegations of fact in the answer which, if found true, negatived liability as to this item and for the $27.32, but the finding of the referee was adverse, and we cannot review his findings of fact. The Judge below possessed that power, but he approved the referee’s findings. We do not find in the pleadings or the referee’s report any admission by plaintiff of a credit of $28.54, as stated in the fourth exception. The receipt was only prima facie evidence, and it was directly impeached by the replication. Harper v. Dail, 92 N. C., 394. The sixth exception is too general to be considered, except as it covers matters embraced in the specific exceptions just referred to. Clark’s Code (2d Ed.), pages 413, 414.

No Error.