#### EDNA B. SEDBURY v. SOUTHERN EXPRESS COMPANY.

(Filed 17 September, 1913.)

Appeal and Error — Case Agreed — Omissions—Procedure—Case .Remanded.

A necessary finding in an action to recover money from an express company, alleged to bave been lost from a valise which • had been intrusted to the defendant for shipment, is that the money was taken while the valise was in the defendant’s care or control, and such finding being omitted from an agreed case submitted to the Superior Court, it is remanded so that the omission may be supplied.

*364Appeal from Lyon, J., at June Term, 1913, of Edgecombe.

Civil action, beard on appeal from a justice’s court. Tbe action was 'to recover tbe sum of $13 and interest, being an amount of money lost from a valise wbicb bad been intrusted witb defendant company for shipment from Fayetteville to Tarboro, N. 0., and for a penalty in failing to adjust tbe claim witbin tbe time required by law, as provided by chapter 139, Laws 1911.

In tbe Superior Court tbe case was submitted on case agreed upon, and judgment having been entered in plaintiff’s favor for tbe claim and tbe statutory penalty, defendant excepted and appealed.

Cf. M. T. Fountain & Son for plaintiff.

F. S. Spruill for defendant.

Per Curiam.

We are unable to determine tbe questions at issue in this cause for tbe reason that tbe facts agreed upon contain no finding that tbe money was taken while tbe valise was in tbe care or control of defendant company. In its ordinary acceptation, a judgment is tbe conclusion of tbe law upon facts admitted or in some way established, and, without this essential fact, tbe Court is not in a position to make final decision on tbe rights of tbe parties. Bryant v. Insurance Co., 141 N. C., 181. Tbe cause will be remanded, that tbe determinative facts may-be established. Tbe costs will be equally divided between tbe parties.

Remanded.