#### F. L. PEYTON v. HAMILTON-BROWN SHOE COMPANY.

(Filed 18 November, 1914.)

1. Reference, Compulsory — Waiver.

A motion for a compulsory reference should be made in an action before the jury has been impaneled, or the rights of a party thereto will be considered as waived. Whether or not it was within the discretion of the trial judge to order a compulsory reference in this case is not presented, as it does not fall within the class of cases wherein such a reference is allowed. Revisal, sec. 519.

2. Contracts — Goods Sold on Commission — Compromise—Consideration.

The plaintiff was salesman for the defendant, and was to receive a commission of a certain per cent upon the sales made by him, and also upon goods shipped by the defendant into his territory during the time of his employment, which was terminated, before its expiration, with the defendant’s consent; and a difference of opinion arising as to the amount due him as commissions earned under the contract, it was agreed by them that the defendant should pay the agreed commission on all sales of goods then to be shipped, when the goods were shipped. This action was brought by the plaintiff to recover the amount alleged to be due him under this arrangement; and it is held that the compromise agreement as to the terms of settlement was supported by a sufficient consideration.

3. Contracts — Goods Sold on Commission — Amount Due — Trials—Evidence.

Where the matter at issue between the parties to an action is as to the amount due the plaintiff in commissions upon the accepted sales of goods he has made for the defendant, it is competent for the plaintiff to testify as to the full amount of his sales, for the purpose of subsequently showing how many of them the defendant had shipped out under his contract; and he may be permitted to refer to corresponding sections of complaint and answer to make his testimony more intelligible, without necessarily making such sections evidence in the case. The plaintiff may also state the amount he claims as owing to him by the defendant, and explain its items, including those he contends were wrongfully charged against him on the defendant’s books; and it is further held that the defendant will not be permitted unfairly to hold back shipments merely for the purpose of depriving the plaintiff of his commissions.

4. Appeal and Error — Unanswered Questions — Prejudicial Evidence — Harmless Error.

Where the plaintiff sues to recover of the defendant his commissions of a certain per cent on the sales of goods he has made for defendant under contract, an immaterial answer to a question as to his commissions ,on a larger amount of sales than he claims cannot be prejudicial to the defendant or held as error on appeal.

5. Trials — Instructions—Verdict, Directing — Questions for Jury.

A request by appellant for instructions directing a verdict, based on only a part of the evidence, which was in favor of the requesting party, and excluding that favorable to appellee, was properly refused, and the *281dispute in this case being over the amount due plaintiff from the defendant as commissions on sales of merchandise made under a contract between them, and the evidence being conflicting, the question thus raised was properly left to the determination of the jury.

Apeeau by defendant from Shaw, J., at Fall'Term, 1914, of Eioh-3VIOND.

This action was brought to recover the amount alleged to be due under a contract between the parties, by which defendant employed plaintiff as its traveling salesman in parts of North Carolina and South Carolina, the territory being designated by reference to a map described therein. Plaintiff was to receive 2% per cent commissions on all goods sold by him and shipped into his territory; to have a drawing account or guaranteed monthly salary of $150, payable at the end of each month, and to be paid all his necessary traveling expenses, the salary to be paid during the time he was at work in his territory and the contract to continue in force for the period of one year. The contract was dated 18 August, 1911, and was, by mutual" consent, terminated 27 July, 1912, plaintiff having resigned his position on the latter date. Plaintiff received his commissions, salary, and expenses from time to time during the performance of the services required of him under the contract, and now claims that on 27 July, 1912, when he resigned, that he had sold goods for the defendant to responsible purchasers, which were thereafter shipped to them by defendant, amounting in value, according to ruling prices of defendant, to $46,528, the commission on which, at the stipulated rate, is $1,285.51, for which he demands judgment. The parties disputed with each other as to the true amount due the plaintiff ■on account of the transactions between them, and on 27 July, 1912, they came to a settlement, in which defendant promised to pay the agreed commission on all sales of goods which had been made by plaintiff in his territory, and which had not then been shipped by defendants, but which were shipped afterwards, the same to be paid when the goods were so shipped, and it is on the sale of these goods, as stated, that he claims his commission. The court submitted one issue to the jury, as to the amount of defendant’s indebtedness to plaintiff, and they returned a verdict for $375.50. Judgment was thereupon rendered, and the defendant appealed.

M. W. Nash for plaintiff.

■ J. P. Cameron for defendant.

Walker, J.,

after making the foregoing statement of the case: It appears that, after the pleadings had been read and the jury impaneled, ■defendant requested the court to order a reference of the case, which ■ was refused, and to this the first exception was taken. The motion for *282a compulsory reference should have been made before the impaneling of the jury. It was due then, in the regular order of procedure, and by passing that stage in tbe trial without acting, the defendant waived his right; he having impliedly accepted the method of trial by jury, instead, by his silence. Such motions must, of course, be submitted in apt time. A like motion was held to have been properly refused, for this reason, in Hughes v. Boone, 102 N. C., 137. See Kerr v. Hicks, 131 N. C., 90. The statute provides that “When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference,” in the cases enumerated therein. Eevisal, sec. 519. Whether this is a discretionary power of the judge we need not decide, as we are of the opinion that this case does not fall within any of the classes where such a reference is allowed. No long or complicated account was necessary to decide the issue between the parties or for the information of the court, and the case, it seems, was tried very easily and fairly without it.

It was competent for the plaintiff, while testifying in his own behalf, to state the quantity of goods sold by him, in order that it might be subsequently shown how many of them had been shipped under his contract and settlement of 27 July, 1911; and for a like reason it was not improper that he should be permitted to refer to section 4 of the complaint and answer to make his testimony intelligible. They were preliminary matters, and the ruling of the court did not make the sections, so referred to, evidence in the case. We see no objection to the same witness stating what he claimed was owing by the defendant, and his explaining the items. Nor was there any valid objection to his stating the items which defendants had wrongfully charged to him or debited him with on their books, as something had to be deducted from the amount they had promised to pay him. It was necessary that this should appear, in order to ascertain the correct balance. All this covers the second, third, fourth, fifth, and sixth exceptions. As to his being-allowed to state the amount of commissions on $103,000 at 2% per cent, if he had answered it, we cannot see what harm would have resulted to defendant; but his answer was not responsive to the question, and there is no exception to the answer, and therefore, on this ground, the seventh exception must fail. Caton v. Toler, 160 N. C., 104; Shaw v. Telegraph Co., 151 N. C., 638. But no harm was actually done by the question and answer, as in the cross-examination he stated, in answer, to defendant’s question, that he only claimed commissions on the sales amounting to $69,624.95 at 2% per cent, which would be $1,914.67, and this amount, with a premium due him of $49, was all that he demanded, the total being $1,963.67; he then stated the amount of the entire shipments, both before and after 27 July, 1912, to be $69,624.95; *283so that the defendant was not prejudiced by the question as to the amount of the commission on $103,000 at 2% per cent, if it had been answered, as he did not seek to recover them. •

This brings us to the consideration of the question, and the pivotal one in the case, whether the settlement of 27 July, 1912, is binding upon defendant. "We cannot see why it is not. The parties had disagreed as to the balance,, if any, due the plaintiff under the contract, and for this reason they came to an accounting, for the purpose of settling the differences between them. This is a sufficient consideration to support the settlement and the agreements or covenants entered into as a part thereof.

In the recent case of Burris v. Starr, 165 N. C., 657, defendant’s appeal at p. 662, we said in regard to a similar question: “In Mayo v. Gardner, 49 N. C., 359, this Court said, by Chief Justice Nash: ‘In re Lucy, 21 Eng. Law and Eq., 199, it was decided that, to sustain a compromise, it was sufficient if the parties thought, at the time of entering into it, that there was a Iona fide (or real question between them), though in fact there was no such question.’ The law favors the settlement of disputes, as was said in that case. It is stated in 9 Oye., 345, that ‘the compromise of a disputed claim may uphold a promise, although the demand was unfounded,’ citing numerous cases to sustain the text.”

Chief Justice Nash said further, in Mayo v. Gardner, supra: “The prevention of litigation is a valid and sufficient consideration; for the law favors the settlement of disputes. Thus, a submission of claims and demands to arbitration is binding, so far as this, that the mutual promises are a consideration, each for the other. 1 Parsons Contract, 364; Com. Dig., ‘Action on the case on Assumpsit,’ A 1, B 2. In Keson v. Barclay, 2 Pa., 531, an action of slander for words was compromised by the defendants agreeing to pay the plaintiff a sum certain; the Court held there was a sufficient consideration, though the words used were not slanderous.” And in Parsons on Contracts (5 Ed.), p. 438, book 2, ch. 1, sec. 4, it is said: “On the same ground a mutual compromise is sustained. With the courts of this country the prevention of litigation is not only a sufficient, but a highly favored consideration, and no investigation into the character or value of the different claims submitted will be entered into for the purpose of setting aside a compromise,it being sufficient if the parties entering into the compromise thought at the time that there was a question between them. And in these cases inequality of consideration does' not constitute a valid objection; it is enough if there be an actual controversy, of which the issue may fairly be considered by both parties as doubtful.” It may be added that the defendant could not hold back the shipment of goods already sold by *284plaintiff for tbe purpose, merely, of defeating bis recovery of bis legitimate commissions. He bad performed bis part of tbe contract and was a faithful agent, so far as appears, and be was entitled to fair treatment in return tberefor. Tbe jury might have so found upon tbe evidence.

Tbe eighth and last exception is equally untenable. Tbe judge could not direct a verdict upon tbe evidence, as requested to do. It was for tbe jury to say what was tbe balance due tbe plaintiff.. There was evidence, we think, upon which they could have found a larger balance than tbe one indicated in defendant’s prayer. Anyhow, there was no ground for such a peremptory instruction, and, besides, defendant could not select a part of tbe evidence, and base a request for a charge upon that alone. It must be considered as a whole. It appears that all of tbe testimony was not stated in tbe record. But, in any view, tbe instruction would have been improper as invading tbe province of tbe jury.

After a careful examination of tbe entire case, we find no reason for complaint on tbe part of tbe defendant. Tbe verdict seems to have been a very moderate one, as we construe tbe evidence.

No error.