Opinion
(September Term, 1894.)
Practice — Referee's Findings of Fact — Action by Agent for Commissions — Quantum Meruit.
1. Where, in passing upon exceptions to a referee's report, the judge below makes no specific findings of fact, it will be presumed, upon appeal to this Court, that he adopted the referee's findings of fact.
2. Where plaintiff, who was entitled under contract with defendant to commissions on all goods sold within a certain territory, went beyond such territory, at the request of defendant, for the purpose of making sales, and obtained orders which were turned down by defendant, he is entitled to his expenses and reasonable compensation for his time.
3. The findings of fact by a referee cannot be reviewed by this Court, when they have been approved by the judge below.
4. A receipt given in a settlement between parties is only prima facie evidence.
ACTION, tried before Allen, J., at Fall Term, 1894, of ASHE, (349) upon exceptions to a referee's report.
The sixth exception was:
"That the referee's conclusions of law are erroneous, in that he finds the defendant is indebted to the plaintiff in any amount (351) at all."
His Honor overruled the exceptions and confirmed the referee's report, and the defendant appealed.
R. A. Doughton for plaintiff.
Haywood Haywood for defendant.
The judge having made no specific findings of fact, he is presumed to have adopted those of the referee. Battle v. Mayo, 102 N.C. 413. The plaintiff sued for commissions on the bill of goods sold to Carroll Co. While this was disallowed because the sale was made in territory not embraced in the contract, it being found as a fact that the trip to make the sale was made at the request of the defendant, the referee properly allowed the plaintiff his expenses and reasonable compensation for his time. Stokes v. Taylor, 104 N.C. 394. There was no error in allowing the commissions on the sale to Yarborough, which was according to the contract. There were allegations of fact in the answer which, if found true, negatived liability as to this item and for the $27.32, but the finding of the referee was adverse and we cannot review his findings of fact. The judge below possessed that power, but he approved the referee's findings. We do not find in the pleadings or the referee's report any admission by plaintiff of a credit of $28.54, as stated in the fourth exception. The receipt was only prima facie evidence, and it was directly impeached by the replication. Harper v. Dail, 92 N.C. 394. The sixth exception is too general to be considered, (352) except as it covers matters embraced in the specific exceptions just referred to. Clark's Code (2 Ed.), pp. 413, 414.
No error.
Cited: Foushee v. Beckwith, 119 N.C. 179; Dunavant v. R. R., 122 N.C. 1001; Smith v. Smith, 123 N.C. 234; Ramsey v. Browder, 136 N.C. 253.