#### L. L. REAMS v. W. C. HIGHT et al.

(Filed 16 December, 1931.)

Appeal and Error .1 d — Where record does not set out evidence upon which court directed a verdict his ruling will not he held for error.

Where an action has been referred to a referee and the parties agree that the trial judge may give a directed verdict on the evidence taken before the referee, the instructions accordingly given will not be held for error when the evidence upon which this ruling is based does not appear of record, the presumption being as to the correctness of the instructions.

Appeal by defendant, W. C. Hight, from Oranmer, J., at March Term, 1931, of YaNCE.

Civil action for an accounting and to restrain the defendants from foreclosing deed of trust.

A reference was ordered and the matter heard by Hon. A. W. Graham, Jr., who found the facts and reported the same, together with his conclusions of law, to the court.

Upon exceptions duly filed and issues tendered, the matter came on for hearing at the March Term, 1931, Yance Superior Court, when it was agreed by counsel “that the court might hear the argument in the case, and then directed the jury as a matter of law,” which was done.

The court’s directions or instructions to the jury are based upon the evidence, none of which is incorporated in the record on appeal.

From a verdict and judgment in favor of the plaintiff, the defendant, W. C. Hight, appeals, assigning errors.

Parker & Allsbrook for plaintiff.

Perry & Kittrell and R. S. McGoin for defendant.

Pee Cueiam.

In the absence of the evidence taken before the referee, and upon which the judge of the Superior Court based his rulings, we cannot say that there was error in the trial. It is not contended that the evidence is insufficient to support the findings and the verdict. The presumption is otherwise.

Affirmed.