#### L. P. LONDON v. BOARD OF COMMISSIONERS OF YANCEY COUNTY.

(Filed 31 January, 1928.)

Appeal and Error — Disposition After Remand — Proceedings in Lower Court.

When a case is remanded to the end that evidence to a certain finding of fact by the judge be made to appear in the record, and the opinion of the court is complete, the trial judge is confined to the particular point, and his inclusion of extrinsic matter will be disregarded.

Civil ACTION, before Parlceo', J., at June Term, 1927, of YaNCBY.

Tbe following judgment was rendered: “This cause coming on for bearing, and in accordance witb the decision of the Supreme Court, wherein the opinion says that this case is remanded to the Superior Court of Yancey County for specific findings as to whether the board of commissioners of said county in their corporate capacity made a supplemental contract or authorized the chairman or any other person to make it, and being heard, the court finds the following facts:

That the transactions and dealings by and between the plaintiff and the defendants relative to the road in controversy on 1 May, 1923, were between the plaintiff and said board on that date while said board of commissioners of three members — -two of them were present, to wit, J. W. Wheeler, chairman, and Hooker Proffitt — were acting in their corporate and official capacity and at a meeting and during the meeting of said board of county commissioners of Yancey County.

The court further finds as a fact that the board of county commissioners of said county did not and have not at any time in their corporate capacity made the supplemental contract, and did not and have not at any time authorized the chairman or any other person to make it.

And upon the findings of fact theretofore entered by his Honor, Judge A. M. Stack, and these findings of fact, it is considered and adjudged that the plaintiff recover of the defendants the sum of $698, with interest thereon from 13 June, 1923, and the costs of this action up to and including the time of filing the answer, at which time the defendants in their answer tendered said amount and the costs, since said tender are taxed against the plaintiff. Said costs to include an allowance of $100 to Hon. W. 0. Ervin, referee.”

From the judgment rendered the plaintiff appealed.

Pless, Winborne, Pless & Proctor for plaintiff.

Charles Hutchins for defendant.

*11BbogdeN, J.

Tbis cause was considered by tbe Court upon a former appeal, wbieb is reported in 193 N. C., p. 100. Exceptions were duly filed to tbe report of tbe referee and tbe cause was thereafter beard by Judge Stack in term.

Judge Stack made tbe following findings: “And it is found tbat tbe commissioners by tbeir action and tbe action of tbe engineer, and by tbeir acquiescence in tbe written statement of plaintiff, and by requiring plaintiff to build tbe road upon a, new route, contracted to compensate bim for bis additional expense and loss by reason of sucb requirement.”

Tbe opinion of tbe Court in tbe former appeal, remanding tbe case, stated: “Tbe only question, therefore, to be determined is whether there is evidence to support tbis finding of fact, tbat tbe board of commissioners made a supplemental contract with tbe plaintiff.” And, further, “tbe cause is remanded to tbe Superior Court of Yancey County for specific findings of fact as to whether tbe board of commissioners of said county, in tbeir corporate capacity, made tbe supplemental contract or authorized tbe chairman or any other person to make it.”

Tbe plaintiff testified in tbe former bearing tbat a supplemental contract was made by tbe commissioners in tbe engineer’s office. It did not appear tbat tbe commissioners were acting in tbeir official capacity in making sucb contract or merely discussing tbe matter informally as individuals. If tbe commissioners at tbat time were acting in tbeir official capacity, then tbe testimony of plaintiff tended to establish a valid agreement. From tbe present bearing, pursuant to tbe order remanding tbe ease, Judge Parker, as will appear from tbe judgment rendered, found as a fact tbat tbe board of commissioners were acting in tbeir official capacity at tbe meeting at which plaintiff testified tbe supplemental contract was made. Therefore, there was evidence to support Judge Stack’s finding in tbe former appeal. Tbe opinion in tbe former appeal further declared: “If tbe board of commissioners of Yancey County were duly assembled and made tbe alleged agreement with tbe plaintiff, of if tbe board of commissioners authorized its chairman or any other person to give a letter of instructions directing tbe work to be changed, and agreeing to pay a fair compensation therefor, then tbe plaintiff is entitled to recover tbe amount allowed.”

At tbe present bearing, it having been found tbat tbe, commissioners were duly assembled in tbeir corporate capacity, 'and tbe plaintiff having testified at tbe former bearing tbat a supplemental contract was made at sucb meeting, it necessarily follows tbat there was evidence to support Judge Stack’s findings, and tbe judgment rendered by bim must stand.

*12In finding tbat no supplemental contract bad been made, Judge Parker extended tbe inquiry beyond tbe limitation prescribed in tbe former opinion.

Upon a consideration of tbe entire case tbe judgment of Judge Stack at tbe former bearing is affirmed, and tbe judgment of Judge Parker, rendered upon tbe present bearing, is affirmed, except to tbat portion of said judgment finding as a fact tbat tbe board of commissioners of Yancey County did not make a supplemental contract and did not authorize tbe chairman or any other person to make it. This portion of Judge Parker’s judgment is reversed for tbe reason stated herein.

Modified and affirmed.