143 S.E. 8 | N.C. | 1928
Civil action to recover $5,567.01, balance alleged to be due on account of the construction or erection of eight cottages desired by the defendant for use in connection with its sanatorium situate near the town of Southern Pines, N.C.
Upon denial of liability and counterclaim filed by the defendant for damages occasioned by delay, etc., the cause was referred, apparently by consent, to Hon. D. B. Teague, who found the facts and reported same, together with his conclusions of law, to the court, allowing the plaintiff a recovery, after deductions awarded on defendant's counterclaim, of $4,367.01.
Upon exceptions duly filed and heard at the December Term, 1927, Moore Superior Court, the same were overruled, and the referee's findings of fact and conclusions of law were adopted and approved, from which judgment the defendant appeals, assigning errors.
It is settled by all the authorities that the findings of fact, made by a referee and approved by the trial judge, are not subject to review on appeal, if they are supported by any competent evidence. Dorsey v. MiningCo.,
Applying this rule, it would seem that the exceptions of appellant should be overruled and the judgment of the Superior Court affirmed.
The defendant's brief is devoted largely to a discussion of the question as to whether this suit can be maintained by the plaintiff because of an alleged disregard of the following stipulation in the contract between the parties: *616
"In case of a contention where amicable settlement cannot be reached, Mr. G. W. McKibbin shall be considered the arbiter, and in the event that his services cannot be obtained, some other architect shall take his place who meets with the approval of the contractor and the owners. In the case of a contention of this sort, the expenses incurred shall be paid by the parties who are found to be at fault."
It is the contention of the defendant that as the plaintiff made no effort to settle the matters in dispute by arbitration, as the contract provides, before bringing suit, the same should be dismissed on authority of what was said in Webb v. Trustees,
A careful perusal of the record leaves us with the impression that the case has been tried substantially in accord with the principles of law applicable, and that the judgment should be upheld.
Affirmed.