The plaintiff rests her appeal upon two contentions: (1) That under Judge McElroy’s order remanding the cause she had a legal right to be heard and to introduce evidence before the referee, and that
It is to be observed in the first place that Judge Bryson appointed a referee to take the evidence, bear the argument, find the facts, and state bis conclusions of law. Tbis order, to which there was no exception, referred the cause for trial and not for the mere statement of an account as a step preparatory to a trial in term. Barrett v. Henry, 85 N. C., 322; C. S., 572 et seq. The evidence was taken, the argument was waived, and the report was filed in the Superior Court. The principal issue was whether the defendant bad built the bouses in compliance with bis contract. In the fifth paragraph of bis findings of fact the referee pointed out bis personal examination of the bouses, made at the suggestion of counsel on both sides, and deduced bis finding not only from the evidence, but from bis personal observation; and in the sixth paragraph be suggested that by taking the testimony of designated witnesses the court would no doubt concur in bis finding. It would seem, then, that Judge McElroy’s instruction that the referee should find the facts and state the law upon the issues raised by the pleading, is reasonably susceptible of only one construction, namely, that the referee, disregarding bis personal observation of the bouses and relying upon the entire evidence, not particularly upon the testimony of certain witnesses, should pass upon the specific issues and find whether either party bad failed to abide by the terms of the written agreement. Manifestly the taking of additional evidence was not within the purview of the order; only a revision of the findings upon the evidence already taken. The object was a more definite report, not another trial before the referee. The argument of counsel bad been waived and the plaintiff made no request of the referee to be beard before the second report was filed. Upon the mere restatement of bis report the referee was not required to give notice to the parties. Gay v. Grant, 116 N. C., 93; Winstead v. Hearne, 173 N. C., 606.
There is another point: the plaintiff in effect admits in her brief that the proposed evidence, if admitted, would have been cumulative; and under the circumstances disclosed by the record we are satisfied the report should not be set aside for the introduction of evidence of tbis character. We find nothing in the record which prevented the operation
Nor was tbe referee required to notify tbe parties tbat tbe report bad been filed; tbeir cause was pending and as tbey bad no right to reopen tbe case for tbe introduction of cumulative evidence and as tbe argument bad been waived, in contemplation of law tbey were affected with notice of tbe various steps tbat were taken during tbe progress of tbe trial, including of course tbe filing of tbe report. Blue v. Blue, 79 N. C., 69; University v. Lassiter, 83 N. C., 38; Dempsey v. Rhodes, 93 N. C., 120; Williams v. Whiting, 94 N. C., 481; Coor v. Smith, 107 N. C., 430; Reynolds v. Machine Co., 153 N. C., 342; Barger v. Alley, 167 N. C., 362.
In S. v. Peebles, 67 N. C., 97, tbe Court said: “It is tbe well-settled rule tbat exceptions to sucb reports, must be made, as a matter of right, at tbe court to which tbe report is made, and after tbat it is a matter of discretion with tbe court whether sucb exceptions shall be allowed or not.” Green v. Castlebury, 70 N. C., 20; University v. Lassiter, supra; Commissioners v. Magnin, 85 N. C., 115; Long v. Logan, 86 N. C., 535; Mfg. Co. v. Williamson, 100 N. C., 83; McNeill v. Hodges, 105 N. C., 52. Tbe plaintiff took no action with reference to tbe report until two terms of tbe Superior Court bad elapsed and thereby lost her opportunity to file exceptions as a matter of right.
Tbe plaintiff’s motion to remand tbe cause was not meritorious. It was based upon tbe affidavit of Jobn Coleman, tbe plaintiff’s husband, in which it was alleged tbat tbe plaintiff bad been denied tbe right to introduce evidence tending to show tbe difference in value between tbe bouses as built and as contemplated by tbe contract. Tbe answer to this position is obvious. Apart from the question of its cumulative character tbe proposed evidence'would have been competent only in case of tbe defendant’s failure to comply with bis contract. But tbe referee found as a fact tbat there bad been a substantial compliance with tbe defendant’s contract, and this finding was affirmed by tbe judge.' There was no occasion for applying tbe measure of damages set up in tbe affidavit.
As to tbe second contention only this need be said: if, without deciding tbe point, we assume tbat section 600 may be invoked in this kind of proceeding, still, as tbe plaintiff was charged with notice of each step in tbe progress of tbe cause, her failure to file exceptions to tbe report was not tbe result of surprise or excusable neglect within tbe meaning of tbe statute.
It may not be inappropriate to suggest tbat when a cause is remanded to a referee, controversy may be prevented by an order pointing out tbe
Affirmed.