In this appeal, having already considered that of the defendant in the same cause, we are required to review exceptions of the plaintiff taken to the rulings of the court below upon the referee's report. The plaintiff files three exceptions which are in substance as follows:
1. For that the referee has gone outside of the limits of the reference which is confined to the issues raised by the pleadings, and undertakes to find a settlement between the parties and extinguishment therein of the claim now in suit.
2. For that he should have charged the defendant with the amount of the draft, the receipt of which is admitted in the answer, subject *Page 296 to the claim for bacon, but undiminished by that claim as it is barred by the statute of limitations.
3. For that the settlement is found without or upon insufficient evidence.
I. The first exception rest upon a misconception of the character of the action as developed in the complaint, and of the defence set up in the answer. It is not for the rendering an account of a continuous agency, in the nature of a bill in equity under our former practice, but to enforce the payment of money received upon a draft placed in the defendant's hands for collection under his contract to account therefor. It would have been, under a divided system of legal procedure, an action of assumpsit, or a demand for money had and received for the plaintiff's use.
The charge is briefly that the draft is deposited with the defendant for collection and his receipt therefor taken, stipulating, if it was paid, to account for the money to the plaintiff's intestate on settlement, and that the defendant has made the collection and fails to account therefore or to pay over the proceeds.
(374) The answer, admitting the possession of the draft, as alleged, and the receipt of the money due on it, asserts that the money has been accounted for and paid over, and that he is not indebted to the intestate in the said sum of $425.75, as averred in the complaint, or in any amount whatever.
The defendant's liability for the claim is thus distinctly put in issue, and indeed lies at the very foundation of the action. The reference is made by consent of parties, and confers upon the referee "full powers under the law, as referee, to hear and determine the case upon the law and facts, and report."
The referee accordingly upon the testimony finds as a fact "that there had been an accounting together and settlement of all unliquidatedbalances, growing out of the mutual dealings between the plaintiff's intestate and the defendant, in the fall or early winter of 1868, and that the value of the draft for the recovery of which the action is brought, to wit, $425.75, was taken into account and adjusted by and between theparties."
This is in direct response to the issue of payment and discharge, and an essential element in the controversy, clearly within the compass of the order and necessary to an adjudication of the cause.
II. The second exception is disposed of in what has already been said.
III. The sufficiency of the evidence to sustain the fact found by the referee and also by the court, that a settlement embracing the claim had taken place, is not a question for us to determine. If there be *Page 297 any evidence, or reasonable evidence, as it is sometimes expressed, to warrant the finding, it is conclusive of the fact and beyond revision on appeal to this court. The only inquiry then is, whether there be any evidence on which the referee was authorized to act. He bases his conclusion mainly upon the testimony of two witnesses examined, whose evidence pertinent to this point is in substance as (375) follows:
Frank Erwin relates a conversation with the intestate in 1868, after he had come into possession of the draft drawn by Noah Gibson on the New York house, in which the intestate said, "he was going to let Mr. McAdoo have it and thought he could pay him with it," and witness knew intestate was then in debt to the defendant.
Charles Hunter testified that he heard the intestate say he owed the defendant some $700, and if he would take up the draft, (that described by the other witness) he could pay witness what he owed for a horse, and that the intestate afterwards told him "he had let McAdoo have the draft and he had about paid him up."
The receipt itself as set out in the complaint undertakes in its concluding clause that the money when collected should be accounted for on a settlement, that is, should be applied as a payment upon his indebtedness, and thus harmonises with the declarations of the intestate as to the disposition he intended to make and did make of the draft. This evidence certainly tends to support the referee's finding, that the proceeds of the draft have been accounted for and applied to the intestate's benefit, and thus the defendant's liability has been discharged. Of its sufficiency to establishe [establish] the fact the referee and his Honor in reviewing, are the sole judges, and not this appellate court.
We therefore concur with the court in overruling the appellant's exceptions in this appeal also, and affirm the judgment.
No error. Affirmed.
Cited: Usry v. Suit, 91 N.C. 410; Sturtevant v. Cotton Mills,171 N.C. 120.