#### W. A. ROGERS v. GENNETT LUMBER COMPANY.

(Filed 20 December, 1910.)

1. Reference Agreed — Power of Court — Procedure.

Tbe court cannot set aside the method of trial agreed upon by the parties to a consent reference.

2. Reference Compulsory — Exceptions—Power of Court.

When either party to a compulsory reference reserves his right to a jury trial, the judge can set the reference aside and submit the case to the jury upon proper issues.

3. Same — Issues.

The judge is not precluded by the issues formulated by the party excepting to a reference; he should submit the issues properly raised by the pleadings.

4. Same — Objections and Exceptions.

A party who does not except to a reference cannot object that the issues were not restricted to those formulated by the other party. He can except only that the issues actually submitted were not such as are determinative of the controversy raised by the pleadings, and did not permit him to present every phase of the controversy. •

5. Contracts^ Written — Parol Evidence — Consideration—Statute of Frauds — Debt of Another — Interests in Lánds — Contemporaneous Agreement.

Plaintiff sold J. certain lands to be paid for at a‘certain rate per thousand feet of lumber -to be cut thereon. The latter sold to defendant, who made a certain cash payment to him in advance, the defendant having no notice that plaintiff owned the land and had reserved a lien on the lumber to secure the purchase price from J. By .contracts in writing between plaintiff, defendant, and J., the plaintiff agreed that the payment of the *109purchase price be made by the defendant from profits made in cutting the lumber at a lower rate per thousand than originally agreed upon with J., which should be paid to plaintiff on the purchase price in behalf of J.: Held, evidence was competent to show an oral contract by which defendant was obligated to pay the purchase price for J.; (1) there was a sufficient consideration to support it in the modification of the lien and price per thousand feet of the plaintiff’s contract with J., so that defendant could cut the lumber and continue his contract; (2) it was not a promise to answer for the debt of another, Revisal, 974; (3) the agreement was to assume to pay a certain sum of money; it was an executed and not an executory contract to convey an interest in lands required by Revisal, 976, to be written; and, if it had been, the purchaser could not object; (4) it does not alter or contradict the written agreement, but adds a collateral stipulation, and does not appear as having been contemporaneously made.

MaNking, J., dissenting.

Appeal by defendant from Joseph S. Adams, J., at Spring-Term, 1910, of MacoN.

Tbe facts are sufficiently stated in the opinion of Qhief Justice Clark.

J. Frank Ra/y, Johnston & Horn, and George L. Jones for plaintiff.

Robertson & Benbow and Aycoch & Winston for defendant.

Olaek, C. J.

When there is. a consent reference the court cannot set aside the method 'of trial agreed upon by the parties. It can affirm, modify, or disapprove the report of the referee or can rerefer the case. When it is a compulsory reference, if either party reserves his right to a jury trial, in the manner pointed out in Driller Co. v. Worth, 117 N. C., 515, the judge can set aside the reference and submit the case to the jury upon proper issues. Brackett v. Gilliam, 125 N. C., 380; Cummings v. Swepson, 124 N. C., 579; Morisey v. Swinson, 104 N. C., 560; Bushee v. Surles, 79 N. C., 51. While the party excepting to the reference should formulate issues, 'the court is not concluded by them, but should submit the issues properly arising upon the pleadings. But, certainly, the party who does not *110except to tbe reference cannot object tbat tbe judge did not restrict bimself to tbe issues formulated by tbe other party. He can only except if tbe issues actually submitted are not sucb issues as are determinative of tbe controversy raised by tbe pleadings, and did not permit bim to present every phase of tbe controversy.

In June, 1907, tbe plaintiff, W. A. Rogers, sold to the defendant J. M. Rogers tbe right to cut tbe timber on tbe plaintiff’s tract of land for $2,500, with tbe stipulation in tbe contract tbat $10 should be paid tbe plaintiff on each 1,000 feet of lumber, at" tbe railroad station before it was shipped, until tbe $2,500 bad been paid. In October, 1907, tbe defendant J. M. Rogers sold tbe right to cut said timber to tbe defendant lumber company, which paid bim bis $500 cash in advance. Tbe lumber company bad no notice tbat tbe plaintiff was tbe owner of tbe land, and bad reserved a lien of $10 per thousand on tbe lumber. Tbe lumber company finding it impossible to operate under this contract, in November, 1907, a written agreement was made between tbe plaintiff, W. A. Rogers, and tbe defendants, J. M. Rogers and tbe lumber company, whereby W. A. Rogers waived bis lien of $10' in consideration tbat $4 per thousand, instead, should be paid bim, to be credited on tbe $2,500 purchase money, and further, tbat before tbe shipment of each car-load of lumber tbe lumber company should pay to W. A. Rogers tbe difference between tbe cost of producing said carload of lumber and delivering it at tbe station, and certain stipulated juices which tbe parties bad agreed should be taken as tbe market value of tbe different kinds of lumber. On tbe same day there was an agreement, also in writing, between W. A. Rogers and tbe lumber company tbat if tbe difference between tbe cost of producing lumber and delivering it at tbe station and tbe estimated market value should not amount to tbe $4 net agreed to be paid W. A. Rogers, there should be an abatement of said $4 to tbe amount of actual profit. Tbe plaintiff alleged in bis complaint tbat besides tbe above contracts, which were all in writing, there was a further oral agreement, in consideration of tbe release of tbe $10 lien, tbat tbe lumber company would be responsible for tbe payment of tbe *111balance due of the $2,500 purchase money for the timber, that it “would protect plaintiff and see that he got his money out of the timber, if he would thus modify the contract for the benefit of the lumber company.”

■The defendant lumber company excepted to the admission of the evidence of this oral agreement, upon the following grounds:

1. That the agreement was without consideration. But the evidence of the plaintiff, if believed, was that the consideration was the reduction of the lien from $10 to $4 to be paid before the shipment of the lumber, so that the lumber company could continue its operations.

2. The defendants contend that the agreement was void, being an oral agreement to be responsible for the debt of another. Eevisal, 974.

Upon that proposition his Honor charged correctly as follows : “If you should find in this case that this debt was owing by I. M* Eogers to the plaintiff, who held a lien or mortgage upon the lumber produced from the timber for the payment of the debt therefor, and that the lumber company, in order to get the lumber released from said lien, promised W. A. Eogers to pay the debt or see that the debt was paid, and by reason of such promise "W. A. Eogers did release and discharge it from the mortgage for the benefit of the lumber company, then the statute of frauds is not applicable, and you shall answer the first issue 'Yes.’ ” Marrow v. White, 151 N. O., 96, and eases there cited.

3. It has been suggested that said promise was void because it was an agreement in regard to an interest in land, and should have been in writing. Revisal, 976. But this was an executed and not an executory contract to convey an interest in land. That had already been done in the written contract. Besides, this is not pleaded. This was a stipulation to assume the payment of a certain sum of money. Taylor v. Russell, 119 N. C., 32. That case cites Green v. R. R., 77 N. C., 95, and other cases which hold that the promisor to pay money “is at the wrong end of the contract” to object that the agreement is not in writing. This has been cited and affirmed, Harty v. Harris, *112 120 N. C., 410; McNeill v. Fuller, 121 N. C., 213; Bank v. Loughran, 126 N. C., 818; Davis v. Martin, 146 N. C., 281.

4. Tbe defendants further contend that tbe oral agreement varies or contradicts tbe written agreement. Aside from tbe fact that it does not appear that it was contemporaneous with tbe Avritten agreement of 2 November, 1907, wbicb reduced tbe payment to $4 per thousand and made other stipulations, it may well be that this oral contract was made prior or subsequent thereto, and therefore was not incorporated into tbe written agreement. But however that may be, it in nowise alters or contradicts tbe written agreement, but simply adds thereto a collateral stipulation. Nissen v. Mining Co., 104 N. C., 309, and cases there cited. See, also, cases which have cited Nissen's case in the Annotated Ed., and Brown v. Hobbs, 147 N. C., 73, in which last the subject has been very fully discussed by Walker, J.

No error.

Manning, J., dissenting.