Farmers Cooperative Exchange, Inc. v. Scott

PARKER, J. Defendants assign as error the order of compulsory reference. Defendants state in their brief: “It is the defendants’ position in this matter that the compulsory reference could not be ordered by the court of its own motion until such time as the plea in bar of accord and satisfaction had been ruled upon. In this case, the defendants point out that there were two distinct controversies, one as to the right of the plaintiff to recover of the defendants under any circumstances as the result of the plea in bar of accord and satisfaction, and the other controversy as to the amount of recovery in the event of the right to recover at all as (sic) established.” Defendants objected to the order of compulsory reference at the time it was entered, but did not except to it, and proceeded with the trial before the referee. By objecting to the order of compulsory reference when entered, and by, after the referee’s report was filed, filing in apt time exceptions to particular findings of fact made by the referee, tendering issues and demanding a jury trial on each issue tendered, defendants complied with procedural requirements to preserve their right to a jury trial. Bartlett v. Hopkins, 235 N.C. 165, 69 S.E. 2d 236. Defendants have had a jury trial. Defendants’ exception to the order of compulsory reference appears only in their assignments of error. Exceptions which appear nowhere in the record, except under the assignments of error, are ineffectual, since an assignment of error must be supported by exception duly noted. Beasley v. McLamb, 247 N.C. 179, 100 S.E. 2d 387; Barnette v. Woody, 242 N.C. 424, 88 S.E. 2d 223; Suits v. Insurance Co., 241 N.C. 483, 85 S.E. 2d 602. During the trial by jury Joseph R. Marks, a witness for plaintiff, testified, inter alia, on direct examination: “It is true that I was manager of the ECX Store in Goldsboro and I was manager at the time the sales ticket for $96.00 was made. This sale to Mr. Scott was made under my control and supervision.” The record then shows: “Defendant objects. Objection overruled: Exception No. IB.” Defendants assign this as error. In respect to this exception defendants state in their brief: “The defendants further argued to the Court that the lower Court erred when, after having ruled that a compulsory reference was necessary and the matter was back before the Court with proper exceptions and objections having been made to the referee’s report and the matter was then before the Court to be heard did not rule upon the defendants’ plea in bar.” There is nothing in the record to show that defendants’ counsel made any such argument [88] at the trial before Judge Paul and a jury. Manifestly, this cannot be considered as an exception to the order of compulsory reference when made. The court submitted to the jury Issue 5, an issue as to defendant Raymond A. Scott’s plea of accord and satisfaction, and the jury answered the issue, No. This assignment of error is overruled. In Lumber Co. v. Pemberton, 188 N.C. 532, 535, 125 S.E. 119, 121, the Court said: “Defendant in apt time objected to the order of reference and is therefoi’e not deprived of his right -to trial by jury of the issue of facts which he has joined with the plaintiff. “Having duly excepted to the order, and upon appeal assigned same as error, defendant presents to this Court, for review, the decision of the court below as a matter of law, contending that it was error to order a compulsory reference, for that the answer contains a general denial and sets up a plea in bar of plaintiff’s right to recover in this action. Defendant having objected to the reference, and excepted to the order signed by the judge, had the option to appeal at once, if he was so minded, or to await final judgment, having preserved his objection by exceptions noted in apt time.” To the same effect: McIntosh, N. C. Practice and Procedure, 2d Ed., Vol. I, sec. 1407, pp. 787-8. It cannot be said as a matter of law that plaintiff’s cause of action does not require the examination of a long account. G.S. 1-189. Defendants, by not excepting to the order of compulsory reference when made and by proceeding with the trial before the referee, have not preserved the right to challenge it upon the ground that it should not have been entered before the alleged plea of accord and satisfaction had been passed on, or any other plea in bar they may contend is asserted in Raymond A. Scott’s answer. Graves v. Pritchett, 207 N.C. 518, 177 S.E. 641, relied on by defendants, is not in point. In that case an order of compulsory reference was ordered, to which both sides excepted. In addition, a serious question is presented as to whether the answer of Raymond A. Scott, liberally construed, shows that the plea in bar of accord and satisfaction extends to the whole cause of plaintiff’s action, or merely to the state of the account between plaintiff and defendants since 26 November 1957. However, it is not necessary to decide this, because defendants did not except to the order of reference when made. Raymond A. Scott, doing business under the trade name of Scott Poultry Company and Scott’s Farm, had three accounts with plain [89] tiff: (1) a special secured feeder account, No. 107; (2) a broiler account, No. 108; and (3) an open account, No. 106. Prior to 26 November 1957 plaintiff sold and delivered to Raymond A. Scott over a period of more than two years a substantial amount of chicks, feed, and supplies, which, according to the nature of the sale, were charged to the account for which they were ordered. Plaintiff brought an action on the broiler account on 28 January 1958 against Raymond A. Scott, which ended in a consent judgment against Raymond A. Sicott in the amount of $2,472.99, plus interest in the amount of $105.10, which judgment with the costs Scott paid. On 26 March 1958 plaintiff instituted an action against Raymond A. Scott on the open account claiming an unpaid balance due it in the sum of $6,536.98, which action is now pending. The instant case is an action brought on the special secured feeder account, No. 107. Plaintiff and the defendants offered evidence in support of the allegations in their pleadings. Joseph R. Marks, manager of plaintiff’s store in Goldsboro during the years 1956, 1957, and 1958 and a witness for plaintiff, testified on cross-examination that the feed sold to Raymond A. Scott by plaintiff under his contracts was sold as feed would be sold to the public in general. He was then asked by defendants’ counsel: “During the period October 5, 1956 to November 26, 1957, do you know the price of feed that was sold by you to the public in general?” He replied: “No, sir.” He was then asked: “Gan you get it for me?” He replied: “Yes, sir.” He was then asked: “And will you?” He replied: “Yes, sir.” Plaintiff objected to this line of questioning. The court sustained the objection. Defendants except and assign this as error. They contend they were “attempting to establish the price of feed sold to the public in general so the jury could get some idea about the costs of the feed sold to Raymond Scott.” Defendants have not put this excluded evidence in the record so that we can see whether or not its exclusion was prejudicial to them, consequently this exception is without merit, and is overruled. Board of Education v. Mann, 250 N.C. 493, 109 S.E. 2d 175. In addition, neither defendant has averred in his or her answer that plaintiff’s charges for feed delivered to Raymond A. Scott were in excess of the price* of feed sold by it to the public in general. Under the theory of the trial below such evidence would seem to be incompetent. L. Clyde Rauch, a witness for defendants, testified on direct examination in substance that he was partially familiar with the flock of chickens raised on Mr. Scott’s farm during the period indicated. He made various trips there and saw this flock of chickens, that it was an average flock, and it would have an average mortality rate of about [90] 15 per cent. He was then asked by defendants’ counsel: “Based upon what you saw at Raymond Scott’s farm and as an expert in production of chickens, do you have an opinion satisfactory to yourself as to the average loss of chickens that Raymond Scott experienced?” The court sustained plaintiff’s objection to the question, and defendants excepted, and assign this as error. The witness was permitted to answer: “Well I would say that he lost 15%. On one occasion I happened to be there those chickens were out of water out there, so from that experience I would say that it was an average operation because I have seen similar things happen too many times.” There is no merit to this assignment of error, because the excluded evidence is a substantial repetition of what Rauch had immediately before testified to without objection. Raymond A. Scott recalled as a witness testified on direct examination in substance: Of these twelve cheques which had been handed to him, one is payable to him and eleven to FCX, but all of these cheques were endorsed by FCX and turned over to him. They are the same cheques which were involved at the time he swapped a cheque with them. He looked for the cheques which he swapped with them during the lunch period, and he found two of them. Plis books are being audited, and things are tangled up. The cheque dated 22 August 1956 in the amount of $176 made payable to FCX is one of the cheques which he exchanged with FCX. Defendants’ Exhibit AA dated 9 July 1957 is a cheque for $230 which was exchanged with Goldsboro FCX. “I would estimate that I gave approximately 50% of the total of the checks received from Southeastern Hatcheries back to FCX.” He was then asked: “Can you get your bank stubs?” He replied: “We will do our best. There is a huge stack of that stuff and the girl that was working there is not there now." Defendants assign as error that the court upon plaintiff’s motion struck out Scott’s estimate of 50% given back to FCX. This assignment of error is overruled. It appears that Scott’s estimate is a pure guess, and further, so far as the record shows, he made no effort to get his bank stubs so as to offer them in evidence, although this action had been pending since 21 January 1958 and the referee did not file his report until 10 July 1961. Raymond A. Scott testified in substance without objection on direct examination: His Exhibit A, which he had introduced in evidence, is a letter dated 21 January 1958, written on stationary of plaintiff, Raleigh, N. O., purporting to be from B. W. Kenyon, Jr., manager of plaintiff’s credit department, and received by him through the mails. This letter states he, according to its records, is indebted [91] to plaintiff in the sum of $3,457.31. This figure does not agree with his open account with them. Plaintiff has now sued him on all three of his accounts with it. The record then shows: “Q. Referring you to defendants’ Exhibit A, Mr. Scott, what amount does this letter indicate that you are indebted to ECX? A. $3,457.31. Q. Does that exhibit indicate what account was involved? Motion answer be stricken from the records. Answer stricken.” Defendants assign this as error. No prejudicial error is shown because this letter was in evidence for the jury, judge and counsel and all concerned to see. Defendants state in their brief they have abandoned their assignments of error based on their exceptions Nos. 2, 4, 5, 6, 8, and 9. Defendants’ other assignments of error to the admission and exclusion of evidence have been carefully examined. Prejudicial error has not been shown, and they are overruled. Our task in considering the assignments of error to the admission and exclusion of evidence has been unusually lab or ions, for the reason that in the assignments of error the pages on which the exceptions appear in the record are set forth wrong in many instances, and the same is true of defendants’ brief. Defendants have assigned as error the court’s charge as to what is meant by “accord and satisfaction.” This assignment of error is overruled, for the very simple reason that what the judge charged as to the meaning of “accord and satisfaction” is taken almost verbatim from what this Court has said is the meaning of these words in Dobias v. White, 239 N.C. 409, 80 S.E. 2d 23, and in Mercer v. Lumber Co., 173 N.C. 49, 91 S.E. 588. The other assignments of error to the charge have been considered, and are all overruled, because, after a careful study of the charge in its entirety, prejudicial error is not shown by defendants. It is significant that the able referee found in his report that plaintiff is entitled to recover from defendants the sum of $25,451.02, with interest, subject to a credit of $125.76 on account of interest paid by defendants on 15 November 1958, and that a jury in a trial presided over by one of our most learned and experienced trial judges, now deceased, found by its verdict that defendants were indebted to plaintiff in the sum of $25,451.02, and the plaintiff, according to the judgment, admitted in open court that defendants on this amount were entitled to a credit in the amount of $125.76 by reason of interest paid on 15 November 1958. All defendants’ assignments of error are overruled. Defendants 'have shown no error sufficiently prejudicial to justify disturbing the trial below. No error.