#### SOUTHERN RAILWAY COMPANY v. ROBERT G. LASSITER AND COMPANY.

(Filed 26 April, 1933.)

Appeal by plaintiff and defendant from Gowper, J., at June Special Term, 1932, of 'Wake.

Affirmed.

In 1923 the defendant made a contract with the Highway Commission to construct a section of the State Highway in Johnston County, and thereafter entered into two “average agreements” with the plaintiff, marked Exhibits 0 and D. These agreements are identical in terms, one applying to cars placed by the plaintiff for the defendant’s benefit at Clayton, the other to cars placed at Wilson’s Mills. The defendant agreed to comply with the terms and conditions of the National Car Demurrage Rules and Charges set forth in Exhibits A and B. In September, October, November, and December, 1923, the plaintiff placed at Clayton and Wilson’s Mills a number of cars consigned to the defendant, some of which, the plaintiff contends, were held by the defendant for unloading for a longer time than was allowed by the demurrage rules. Upon failure of the parties to agree upon a settlement the plaintiff brought suit against the defendant to recover $2,442, the amount alleged to be due for demurrage charges. Pleadings were filed and the cause was referred to a referee with instructions to hear the evidence and to report his findings of fact and his conclusions of law. The referee made a report, the court recommitted the cause, the referee heard additional evidence, and submitted his final report. The plaintiff and the defendant filed exceptions.

Smith & Joyner and John H. Anderson, Jr., for plaintiff.

Parham & Lassiter for defendant.

Per Cueiam.

The record is voluminous and the briefs are exhaustive. We have given the exceptions filed by both parties due consideration and have discovered no assignment of error which calls for special discussion. The trial court overruled all exceptions and objections to rulings, findings of fact, and conclusions of law except the 17, 25 and 26 findings of fact, and as to these sustained the defendant’s exceptions. The pertinent principles of law are familiar and the judgment of the court accords with previous decisions and should be affirmed. Judgment

Affirmed.