#### DILLING COTTON MILLS v. LOWELL COTTON YARN COMPANY.

(Filed 8 December, 1926.)

Appeal and Error — Reference—Bindings of Fact — Evidence—Review.

The findings of fact by a referee upon competent evidence affirmed in the Superior Court on appeal thereto, is not reviewable on the further appeal to the Supreme Court.

Appeal by defendant from judgment of Superior Court of GastoN County, rendered 6 February, 1926, by Harding, J. Affirmed.

Action to recover balance due upon account for goods sold and delivered; in defense, defendant pleads as counterclaim damages for breach of contract alleged in tbe answer. Plaintiff in its reply denies tbe contract.

From judgment upon report of tbe referee tbat plaintiff recover of defendant tbe sum of $865.67, witb interest and costs, defendant appealed to tbe Supreme Court.

O. Max Gcurdner, 0. F. Mason, and George B. Mason for plaintiff.

Mangurn & Benny for defendant.

Per Curiam:.

Tbe referee, to wbom tbis action was referred for trial, found as a fact tbat “no enforceable contract was entered into by and between tbe plaintiff and defendant on or about 31 January, 1918, tbe basis of defendant’s counterclaim.” He therefore concluded as a matter of law tbat tbe defendant is not entitled to recover any damages of plaintiff as a counterclaim. To tbis finding of fact and conclusion of law defendant excepted. Tbe judge overruled these exceptions, and defendant upon its appeal to tbis Court assigns same as error.

Tbe referee’s conclusion of law tbat defendant was not entitled to recover damages of plaintiff was manifestly correct, if there was no error in bis finding of fact. There was evidence at tbe bearing before tbe referee sufficient to support bis finding of fact, which was approved by tbe trial judge. Such finding is therefore not reviewable upon appeal to tbis Court. Sanders v. Griffin, 191 N. C., 453, and cases cited. “It is tbe accepted position witb us tbat tbe findings of fact by a referee, concurred in by tbe judge, are conclusive when there is competent evidence to sustain them.” Comrs. v. Abee Bros., 175 N. C., 701. Tbe assignment of error cannot be sustained. Tbe judgment is

Affirmed.