Barcroft & Co. v. Roberts & Co.

Ashe, J. The reference to Surnmey was a reference under The Code, and it was the duty of the referee to report the evidence, his findings of fact and his conclusions of law. And it was then the duty of the judge, upon exceptions filed by the defendants in this case, to review the findings of the referee upon the facts and law. The judge should then find the facts himself upon the evidence, and his conclusions of law upon his findings. His findings of fact, upon appeal to this court, are conclusive; and his conclusions of'law upon them are alonereviewable. Green v. Castlebury, 70 N. C., 20. But where the judge does not make a special finding of the facts, it is presumed in such case that he accepts the findings of the referee. In the evidence reported by the referee, we find an exhibit marked “A,” which pne of the plaintiffs testified was a true *367 exhibit of all the credits to which the defendants were entitled. The exhibit is as follows: “ Philadelphia, July 12th, 1883. Messrs. G. M. Roberts & Co., Asheville, N. C., In account with Barcroet & Co.: [Remittances by Express must be prepaid.! 1869. April 6th. To merchandise 60 days.. $ 370.52 Sept. 25th. Interest. • 3.80 Gr. July 25th. By cash.$300.00 Sept. 25th. “ “ .1. 74.32 $374.32 $ 374.32 1869. May 14th. To mdse 60 days, due July 14th, 1869, $ 477.92 Sept. 25th. “ “ “ “ Nov. 25th, “ 689.07 1870. Jan. 17th. “ “ “ “ March 17th, 1870, 342.81 $1,509.81 Or, 1870. cash....$238.37 Jan. 15th. By expenses of collection.. .. 7.63 1871. cash. 104.63 April 7th. “ “ . 100.00 May 12th. “ “ . 200.00 June 13th. “ 1872. “ . 200.00' Oct. 16th. “ 1873. $49.75, ex. 25c. 50.00 June 4th. “ Í875. “ 1239.09, ex. $26.91 Oct. 15 th “ to o> o o “ $89.90, ex. $10.10. Aug. 26th, “' h-L o o o o 1,266.63 Bal. due exclusive of interest.$243.18 To mdse due March 17, 1870, $342.88 “ interest to August 7,1872, ■ 41.13 Amount of claim sent W. M. Oocke, Jr., August 7, 1882, for collection, $391.95.” *368 But the defendants offered in evidence a receipt for five hundred dollars, dated the 28th of September, 1873, and that this voucher was not allowed as a credit to the defendants by the referee; and this constitutes their second ground of exception. The referee has found the facts, that the defendants had dealings with the plaintiffs, beginning in 1869; that the bills of goods purchased by them from the plaintiffs, between that time and the institution of this action, amounted in the aggregate to $1,509.81 — the first bill having been sold April 6th, 1869, and the last, January 17th, 1870; ánd that the defendants have paid in various payments, extending from the 15th of January, 1870, 'to August, 1875, $1,266.13 — leaving a balance due, on the 26th of August, 1875, of $243.18. The referee does not find directly that the receipt of the $500 was embraced in the credits given to the defendants, so as to reduce the balance to $243.18, but does virtually so find, by finding that the balance due is $243.18. But if the credit of $500 had been allowed in addition to the other credits, it would have brought the plaintiffs in debt to the defendants several hundred dollars, which was never claimed by the defendants. This exception should have been overruled. As to the first and third exceptions — The referee finds the facts, that J. L. Henry was the attorney for the defendants ; and also that W. M. Cocke, Jr., attorney for the plaintiffs, to whom the matter was originally entrusted for settlement, delayed bringing an action against the defendants, because of the repeated promises of the defendant, G.. M. Roberts, to settle the matter and pay whatever might be due, and the further promise of J. L. Henry or G. M. Roberts that they, the defendants, would not rely upon the statute of limitations. The conclusion upon this finding was that the statute of *369 limitations did not bar the plaintiff’s action, and His Honor sustained the exception' to this ruling of the referee, and^ in that, we think he erred. We lay out of view the question whether the promises to pay should have been in writing^ or whether they were sufficiently explicit to amount to such acknowledgments as would take the case out of the operation of the statute ; for the facts of the case oppose an equitable obstruction to the statute, which makes these other considerations needless. Our courts, as now constituted with a blended legal and equitable jurisdiction, will prevent a party from setting up an unconscientious defence. Tnus, it was held in Haymore v. Commissioners, 85 N. C., 268, that the defendants will not be allowed to set up the statute of limitations in bar of the plaintiff’s claim, when the delay, which would otherwise give operation to the statute, has been induced by the request of the defendants, expressing or implying their engagement not to plead it. The same doctrine is announced in Lyon v. Lyon, 8 Ired. Eq., 201, where it was held that the neglect to prosecute a legal claim within the proper time, though arising from mistake, amounts to laches; and the party must abide the consequences, unless the other party either agreed not to. take advantage of the delay, or contributed to .bring about, the delay. The same principle was decided in Daniel v. Commissioners, 74 N. C., 494, and this was a case where the agreement, was made with the defendants’ attorney. Here, the promise was made either by the defendants or their attorney. But it was made by the one or the other, and it makes no difference which, according to the last cited case. To the . same effect is High on Inj., § 72, and Story Eq. Juris., § 1521. There is error. Let this be certified to the end that judgment may be rendered in conformity to this opinion. Error. Reversed,