Pritchett v. Greensboro Supply Co.

*345 "Walker, J. This action was brought to recover tbe sum of $1,319.04, alleged to be due to tbe plaintiff as traveling salesman of tbe defendant for salary, commissions and expenses. Tbe defendant denied tbat it is indebted to tbe plaintiff except in a certain amount wbicb it tendered, but wbicb was less tban tbe amount actually due according to its own contention, and much less tban tbe amount found to be due by tbe jury upon tbe evidence and under tbe instructions of tbe court. There was a controversy as to tbe commissions alleged to be due for tbe year 1908, but no issue was raised as to tbe salary and expenses for September, 1908, or tbe commissions for tbe year 1907. Tbe only matter at issue between tbe parties related to tbe commissions of tbe plaintiff for tbe year 1908, and as to these the defendant alleged tbat there was a new contract, wbicb was a substitute for tbe old one, and by wbicb it was released from liability for commissions on sales made by tbe plaintiff during tbat year in consideration of tbe promise of tbe defendant to pay him tbe sum of $200 per month and traveling expenses for tbe last half of tbe year. Tbe plaintiff contended tbat tbe new contract was never consummated, but was only tentatively proposed, while tbe defendant alleged tbat it was a completed contract.' Tbe cause was referred by order of tbe court. Both parties excepted, but neither party appealed. Tbe referee found for tbe defendant upon tbe material question in tbe ease. Tbe plaintiff excepted to tbe report and tendered tbe issue raised by tbe pleadings and then demanded a jury trial. Tbe issue was submitted and found for tbe plaintiff and judgment rendered for him in tbe sum of twelve hundred and 42-100 dollars, with interest and costs. Tbe defendant excepted and appealed and assigned as error tbat tbe court submitted tbe issue as to tbe contract of 1908 to tbe jury, at tbe request of tbe plaintiff. Tbe defendant’s contention is tbat, while tbe plaintiff excepted to tbe order of reference, be did not appeal therefrom, and therefore was not entitled to a jury trial. But this view of tbe law we think was erroneous, and we have so decided. A party may object to a reference, if there is a plea in bar, and appeal at once, if be is so minded, or be may rely upon bis *346 objection by reserving bis exception, and appeal from tbe final judgment. Tbis is a convenient practice or procedure, because if tbe case goes on and tbe party wbo bas excepted succeeds finally, by tbe decision of tbe referee or tbe verdict of tbe jury, bis exception to tbe reference becomes immaterial, and tbe result shows tbat no appeal was really necessary to protect bis right. He could appeal when tbe order of reference was made, but was not bound to do so at tbat time. Tbe practice in tbis respect bas been settled. Kerr v. Hicks, 131 N. C., 92; Jones v. Wooten, 137 N. C., 421; Austin v. Stewart, 126 N. C., 525. Why should tbe plaintiff have objected to tbe order of reference unless be intended to reserve bis right to a trial by jury of tbe issue raised by tbe defendant’s plea in bar and to prevent an inference tbat be bad assented to tbe order, which might make tbe reference, at least as to him, one by consent? Ogden v. Land Co., 146 N. C., 444. Our conclusion is tbat if there is a reference of tbe ease by order of tbe court against tbe objection of either party, because there is a plea in bar, be may except and appeal at once, or wait until there is a final judgment and then appeal. No error.