In this appeal, the defendant, The North Carolina Car Company, insists that it was entitled to have the issues, arising upon its exceptions, tried by a jury under chapter 237 of the acts 1897. Upon examination of this statute, so far as it relates to the trial by jury, in cases of reference, it is almost identical with section 421 of The Code, and must receive the same construction that has been given to that section. The order of reference is as follows:
"This action coming on to be heard at this April Term, 1897, of the Superior Court of Wake County, it is ordered that this action be referred to A. C. Zollicoffer, Esquire, to hear and determine all questions and issues of fact and law, and all pleas in bar arising in said action, and to state all necessary and proper accounts between parties. This order is made by the court and not by consent."
It seems to us that this was a proper case for an order of reference. This the car company does not dispute, but, under the terms of the order and the statute of 1897, it insists that it was entitled to have the issues arising upon its exceptions submitted to a jury for trial, without objecting to the order of reference. But if the statute of 1897 is substantially the same as section 421 of The Code, this contention has been decided against the defendant car company. Driller Co., v. Worth, 117 N.C. 515, where it is held that a "failure to object to an order of reference, at the time it is made, is a waiver of the right to a trial by jury." This case has been cited with approval in Collins v. Young, 118 N.C. 266; State v. Mitchell, 119 N.C. 784. Holding as we do, that the (151) statute of 1897, in this respect, is the same as section 421 of The Code, we find no error in the court for overruling this motion. This motion being properly refused, it was the duty of the judge to pass upon and find the facts, which it did. Code, sec. 422. And these findings of fact are as binding on us as if they had been found by a jury. We cannot review them. Dunavant v. R. R., 122 N.C. 999; Collins v.Young, supra; Cotton Mills v. Cotton Mills, 115 N.C. 475.
This brings us to the question of lien, and, if a lien, to what extent, and upon what property?
These questions the learned counsel did not press in his argument before us. And upon examining the findings of fact by the referee (and the findings of fact by the referee were expressly adopted by the court as its findings), we readily see why he did not. The referee finds as facts that the defendant car company made the contract for this work, and for furnishing the material charged for in its complaint, with Holding as lessee of the paper company, and not as the agent of the paper company; that it knew at the time it made the contract and at the time *Page 129 it did the work that Holding was the lessee, and that he was having the work done for himself and for his own benefit, and not for the paper company. This being so, the car company has no debt against the paper company; and there can be no lien, without a debt. Baker v. Robbins,119 N.C. 289; Boone v. Chatfield, 118 N.C. 916. As the car company has no debt against the paper company and no lien on the property of the paper company, of course the plaintiff Belvin's mortgage cannot be affected by this claim.
According to the findings of the referee, the car company has a cause of action against the defendant Holding. But the action of the car company is not against him.
Under the findings of fact by the referee, the car company has (152) no lien on the property of the Raleigh Paper Mills Company, under section 1255 of The Code, nor under any other statute.
There may be other claims against the paper company that were not specially called to our attention, and to which we have not given a separate treatment, as the record is very voluminous and they may have escaped our attention. If there are such, they will be considered as falling under the principles we have laid down in discussing this claim of the car company, and will be governed by them.
The case will be recommitted to Mr. Zollicoffer to reform his report in accordance with this opinion and the opinion of the court filed in the plaintiff's appeal; and when so reformed, it will be confirmed, and judgment rendered according to the reformed report. The car company will pay the costs of this appeal.
Modified and affirmed.