Standard Crown Co. v. Jones

145 S.E. 5, 196 N.C. 208, 1928 N.C. LEXIS 320

• Court: Supreme Court of North Carolina
• Decided: October 24, 1928
• Status: Published

Opinion

BeogdeN, J.

“It is settled by all the decisions on the subject, with none to the contrary, that the findings of fact, made by a referee and approved by the trial judge, are not subject to review on appeal, if they are supported by any competent evidence.” Kenney v. Hotel Co., 194 N. C., 44, 138 S. E., 349.

The question, therefore, is whether or not there was evidence to support the findings. The plaintiff contends that the letter of 12 January, 1920, from the defendant to the plaintiff and the reply thereto dated 26 January, 1920, constituted a written contract between the parties. The defendant, upon the other hand, contended that the letters were written in conformity with a prior parol agreement. It is now settled beyond dispute that if the contract is not required by law to be put in writing and a part of said contract is oral, evidence of the oral portion is admissible 'if it does not contradict or vary the writing, for the purpose of establishing the contract in its entirety. Palmer v. Lowder, 167 N. C., 331, 83 S. E., 464; Henderson v. Forrest, 184 N. C., 234, 114 S. E., 391; Miller v. Farmers Federation, 192 N. C., 144, 134 S. E., 407; Hite v. Aydlett, 192 N. C., 166, 134 S. E., 419.

The defendant testified that he made a verbal agreement with an agent of plaintiff according to which the plaintiff would make up the crowns and keep them in stock for defendant, and ship them as needed, at the prevailing market price, and that thereupon the defendant agreed with the agent of plaintiff that upon his return to Baleigh he would make up an order in accordance with the conditions stipulated, and in pursuance of such agreement the letter of 12 January was forwarded to plaintiffs. It will be observed that the letter of 12 January stipulates no price for the crowns and specifies no time for shipment except “when ordered.” As we interpret the evidence of the alleged verbal contract in connection with the letters, it does not appear that the parol agreement alleged by the defendant is totally inconsistent with the subject-matter of the letters. Certainly it cannot be said that there was no evidence of the parol agreement, and under the authorities, the finding of fact by the referee, approved by the trial judge, is conclusive.

With respect to the ninth finding of fact, the plaintiff contends that there was no evidence to support such finding to the effect that there was a “well recognized custom and practice of the trade.”

With reference to the amount a customer should pay for “obsolete crowns made up for such customer and not ordered out,” a witness for defendant testified: “That it was a general custom and was accepted by all the manufacturers at the time this order was given in January, 1920.” While there was an apparent conflict, this testimony was some evidence of the custom relied upon. The rule is stated thus in Penland v. Ingle, 138 N. C., 456, 50 S. E., 850: “The character and description of evidence admissible for establishing the custom is the fact of a general usage and practice prevailing in the particular trade or business, and not the opinions of witnesses as to the fairness or reasonableness of it.” The law of custom, as established in this jurisdiction, is discussed in the following cases: Blalock v. Clark, 137 N. C., 140, 49 S. E., 88; Penland v. Ingle, 138 N. C., 456, 50 S. E., 850; Bank v. Floyd, 142 N. C., 187, 55 S. E., 95; McDearman v. Morris, 183 N. C., 76, 110 S. E., 642.

As the record discloses that there was evidence to be'considered by the referee of a verbal agreement and of a general custom of the trade, his findings of fact, having been approved by the trial judge, determine the controversy.

Affirmed.