Smith v. Atlantic Joint Stock & Bank of Raleigh

Supreme Court of North Carolina

Smith v. Atlantic Joint Stock & Bank of Raleigh

212 N.C. 79

DecidedSeptember 22, 1937

StatusPublished

This text of 212 N.C. 79 (Smith v. Atlantic Joint Stock & Bank of Raleigh) 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.

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Smith v. Atlantic Joint Stock & Bank of Raleigh, 212 N.C. 79 (N.C. 1937).

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DbyiN, J.

Tbe rule is established in this jurisdiction that findings of fact by a referee, concurred in by the judge, are conclusive when there is competent evidence to sustain them. Cotton Mills v. Yarn Co., 192 N. C., 713; Story v. Truitt, 193 N. C., 851.

Hence, the only question presented by this appeal is whether there was any evidence to support the finding of the referee, approved by the court below, that the plaintiff was entitled to commissions on all approved real estate sales in his territory during the period from 1 April,

1932, to 7 April, 1933. It is obvious that the testimony of plaintiff, the letter of 30 March, 1932, and the memorandum of 7 April, 1933, constitute some evidence supporting this finding.

But the defendant insists that the statement signed by plaintiff on 24 February, 1933, shows a different understanding and is inconsistent with plaintiff’s claim, at least after that date.

It will be noted, however, that plaintiff testified in explanation and amplification of the letter of 30 March, 1932, that certain definite territory was assigned to him, and that the agreement for compensation included payment of commissions on all approved real estate sales within that territory, and that this evidence, together with the language of the memorandum of 7 April, 1933, which purported to change the previous rule and to limit commissions thereafter to those directly responsible for sales, sustains plaintiff’s claim, and it cannot be held as a matter of law that an inconsistent statement made by him on 24 February, 1933, would have the effect of overthrowing all of plaintiff’s evidence. Judgment of nonsuit could not be sustained upon that statement alone (Hadley v. Tinnin, 170 N. C., 84), and hence, however persuasive the language of the statement, the trier of the facts was not thereby necessarily precluded from finding for the plaintiff on other competent evidence.

The judgment of the court below must be

Affirmed.

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DbyiN, J.

Tbe rule is established in this jurisdiction that findings of fact by a referee, concurred in by the judge, are conclusive when there is competent evidence to sustain them. Cotton Mills v. Yarn Co., 192 N. C., 713; Story v. Truitt, 193 N. C., 851.

Hence, the only question presented by this appeal is whether there was any evidence to support the finding of the referee, approved by the court below, that the plaintiff was entitled to commissions on all approved real estate sales in his territory during the period from 1 April,

1932, to 7 April, 1933. It is obvious that the testimony of plaintiff, the letter of 30 March, 1932, and the memorandum of 7 April, 1933, constitute some evidence supporting this finding.

But the defendant insists that the statement signed by plaintiff on 24 February, 1933, shows a different understanding and is inconsistent with plaintiff’s claim, at least after that date.

It will be noted, however, that plaintiff testified in explanation and amplification of the letter of 30 March, 1932, that certain definite territory was assigned to him, and that the agreement for compensation included payment of commissions on all approved real estate sales within that territory, and that this evidence, together with the language of the memorandum of 7 April, 1933, which purported to change the previous rule and to limit commissions thereafter to those directly responsible for sales, sustains plaintiff’s claim, and it cannot be held as a matter of law that an inconsistent statement made by him on 24 February, 1933, would have the effect of overthrowing all of plaintiff’s evidence. Judgment of nonsuit could not be sustained upon that statement alone (Hadley v. Tinnin, 170 N. C., 84), and hence, however persuasive the language of the statement, the trier of the facts was not thereby necessarily precluded from finding for the plaintiff on other competent evidence.

The judgment of the court below must be

Affirmed.

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212 N.C. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-atlantic-joint-stock-bank-of-raleigh-nc-1937.

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