Jeffords v. . Waterworks Co. , 157 N.C. 10 ( 1911 )

The facts are sufficiently stated in the opinion of the Court by MR. CHIEF JUSTICE CLARK. This is an action to recover the contract price for boring an artesian well. The plaintiffs alleged that they were wrongfully prevented by the defendants from completing the contract; but the defendants denied this, and alleged that the failure of the plaintiffs to complete the contract was caused by their failure or refusal to use the necessary machinery for straightening crooked places in the well, caused by the drill being deflected by hard rock.

The case was referred to a referee, who was adjudged the plaintiffs entitled to recover the contract price for the work actually done up to the time they were stopped by the defendants. The exceptions before us are to the judge's overruling the exceptions by the defendants to the referee's report. Exceptions 1, 2, and 3 are to the witness stating in reply to questions asked that the machine was "the best and latest all-round equipped machine for drilling water wells; that it was equipped with all necessary tools for drilling and straightening crooks in water wells, and that he could have gone to any desired depth within 800 feet with that machine." The objection is on the ground that the witness had not qualified as an expert. But we do not think that "the testimony of a witness concerning a physical fact peculiary within his knowledge" is expert evidence. Britt v. R. R., 148 N.C. 40, and cases there cited. (12)

The evidence as to the second contract was properly ruled out, as there was no plea of a second contract.

The objection to the deposition of George Jeffords, because he was a party to the action and was in this State when the action was begun, cannot be sustained, for the referee finds as a fact that the witness was a resident of Pennsylvania when the deposition was taken. Revisal, 1645(2). The deposition is competent if the witness is out of the State at the time of the trial or is more than 75 miles from the place where the court is sitting. Revisal, 1545 (9); Barnhardt v. Smith, 86 N.C. 473.

The contract being in writing and no allegation of fraud or misrepresentation, it was not error to exclude conversations preceding the execution of the contract. Bowser v. Tarry, 156 N.C. 35.

The question as to the insufficiency of a prior machine and its equipment was irrelevant and could throw no light upon the inquiry before the court. It was properly excluded.

Exceptions 8 and 9, for refusal of motion to quash because of the irrelevancy or incompetency of some of the testimony, cannot be sustained. A deposition can be quashed only for irregularities in the taking or for the incompetency of the witness, and not upon the ground that some of the answers were incompetent or irrelevant. Such questions and answers should be excepted to.

Exception 10 is that the name of the witness was not given in the commission to take the deposition. But the notice to take the deposition gave the name of the witness and the address of the commissioner before whom it was to be taken. The defendant knew that this witness was to be examined, the cause in which, the place where, and the commissioner before whom he was to be examined. The statute does not require the name of the witness to be stated in the commission. The names of other witnesses were, however, given in the commission. It does not appear that the defendant was prejudiced, for the notice to take deposition did name this witness. In McDugald v. Smith, (13) 33 N.C. 576, the notice was to take the deposition "of A., B., C. et al., and no deposition of A., B. or C. was taken, and it was held that this was not ground for exception to the depositions of the other witnesses which were taken.

The refusal of the judge to recommit the report to the referee was a matter which rested in his discretion. The exceptions to the finding of fact by the referee are that they are "contrary to the weight of the evidence." That was a matter addressed solely to the trial judge, and cannot be considered here. Lewis v. Covington, 130 N.C. 541. When, as here, the referee's findings of fact are affirmed by the judge, his action is conclusive if there is any evidence to support such findings. Brown v. R. R., 154 N.C. 300; Mirror Co. v. Casualty Co., 153 N.C. 373. On examination, we find that there was evidence as to each finding of fact, and such findings are not open to review on appeal. Williams v. Hyman,153 N.C. 167.

Affirmed.

Cited: Mfg. Co. v. Mfg. Co., 161 N.C. 434; In re Rawlings, 170 N.C. 61.