{ "id": 8619654, "name": "THE DAYTON RUBBER MANUFACTURING COMPANY v. P. W. HORN and J. A. NEWELL", "name_abbreviation": "Dayton Rubber Manufacturing Co. v. Horn", "decision_date": "1932-12-21", "docket_number": "", "first_page": "732", "last_page": "733", "citations": [ { "type": "official", "cite": "203 N.C. 732" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "133 S. E., 183", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N. C., 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616213 ], "opinion_index": 0, "case_paths": [ "/nc/192/0042-01" ] }, { "cite": "132 S. E., 563", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N. C., 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630248 ], "opinion_index": 0, "case_paths": [ "/nc/191/0535-01" ] } ], "analysis": { "cardinality": 280, "char_count": 3957, "ocr_confidence": 0.448, "pagerank": { "raw": 1.4188597644869926e-07, "percentile": 0.6485889717894749 }, "sha256": "95b3c05e36016dd4087e52d6766026cbb3dd48758130cd344fe5dd4d85446d4b", "simhash": "1:96f043300d5cd00c", "word_count": 659 }, "last_updated": "2023-07-14T19:49:40.426370+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE DAYTON RUBBER MANUFACTURING COMPANY v. P. W. HORN and J. A. NEWELL." ], "opinions": [ { "text": "Brogden, J.\nTbe defendants assert that the trial judge had no power to order a compulsory reference by virtue of 0. S., 573, for that:\n(a) The reply constituted a plea in bar.\n(b) The account was not long or complicated.\nThe pleadings disclosed a course of dealing between the parties for a substantial period. These transactions involve many items, and, while the methods of doing business and of computing the profit or compensation of plaintiff were changed from time to time, the course of dealing was practically continuous. Consequently, the action, in its essential features, involved an accounting. There is no plea in bar, which pulls up the case by the roots, and this is necessary, for the reason that such plea must destroy or defeat the entire claim or demand. Bank v. Evans, 191 N. C., 535, 132 S. E., 563; Bank v. McCormick, 192 N. C., 42, 133 S. E., 183.\nThe statute empowers a trial judge to order a compulsory reference in cases requiring \u201cthe examination of a long account on either side.\u201d The statement of account constitutes approximately twenty pages of the record, made up of thirty invoices, containing in excess of two hundred and fifty items. There is no statutory or judicial definition of a \u201clong account.\u201d Indeed, the expression is perhaps less complicated than any definition thereof. Obviously a correct conclusion as to whether an account was \u201clong\u201d would depend upon the facts and circumstances of a given case. The tendency of Appellate Courts generally is to construe liberally the Reference Statute, and the Court is of the opinion that the account in controversy was correctly classified by the trial judge.\nAffirmed.", "type": "majority", "author": "Brogden, J." } ], "attorneys": [ "Tillett, Tillett & Kennedy and F. Grainger Pierce for plaintiff.", "Cochran & McGleneghan and W. 0: Davis for defendants." ], "corrections": "", "head_matter": "THE DAYTON RUBBER MANUFACTURING COMPANY v. P. W. HORN and J. A. NEWELL.\n(Filed 21 December, 1932.)\nReference A a \u2014 Order for compulsory reference is affirmed in this case.\nAn order for a compulsory reference of an action involving a course of dealing between the parties for a substantial period and containing a statement of account in excess of two hundred and fifty items is affirmed under the provisions of C. S., 573, the answer filed by the defendant not constituting a plea in bar in that it does not destroy or defeat the entire claim or demand.\nCivil action, before Oowper, Special J., at September Term, 1932, of MECKLENBURG.\nThe plaintiff alleged that it sold and delivered, at various times, tires, tubes, and advertising materials to the defendant, Horn, and that the defendant, Newell, is liable for the payment of said amount by reason of a contract of guaranty executed by said Horn and Newell, dated 19 November, 1930. The amount claimed to he due was $4,772.31, and attached to the complaint was an itemized statement of the account running from September, 1930, to July, 1931. Newell filed an answer admitting that he executed the guaranty agreement, but alleged that the plaintiff was indebted to Horn in a sum greatly in excess of the amount claimed by the plaintiff. Horn filed an answer admitting that he purchased tires, tubes, and advertising materials from the plaintiff between 19 November, 1930, and' February, 1931, but he set up counterclaims against the plaintiff, alleging in substance that there were three contracts between the parties, and that the plaintiff had breached these contracts, resulting in damage aggregating $26,671.42. The plaintiff filed a reply to the counterclaims, admitting the signing of a letter, dated 3 October, 1928, attached to Horn\u2019s answer, and of other letters and agreements dated 12 March, 1929, 14 April, 1930, and 17 July, 1930, with reference to the transactions between the parties.\nWhen the cause came on for hearing the trial judge referred the action to Hon. C. D. Talliaferro \u201cto report the evidence and his findings of fact and law to this court as provided by statute.\u201d The defendants excepted and appealed.\nTillett, Tillett & Kennedy and F. Grainger Pierce for plaintiff.\nCochran & McGleneghan and W. 0: Davis for defendants." }, "file_name": "0732-01", "first_page_order": 800, "last_page_order": 801 }