Opinion
(Filed 19 March, 1947.)
APPEAL by plaintiff from Phillips, J., at September Term, 1946, of MITCHELL. Affirmed.
McBee McBee and Watson, Fouts Watson for plaintiff, appellant.
W. C. Berry and Charles Hutchins for defendants, appellees.
Civil action to recover balance alleged to be due on contract to erect a church building for defendants in which the defendants plead a counterclaim for damages for breach of contract, heard on report of referee.
The contract is admitted. Defendants plead breach thereof and resulting damages for which they pray judgment. Hence the issues as raised by the pleadings are those raised by the further answer and counterclaim. Plaintiff failed to tender the issues thus raised and to demand jury trial thereon. Booker v. Highlands, 198 N.C. 282, 151 S.E. 635; Brown v. Clement Co., 217 N.C. 47, 6 S.E.2d 842. Hence trial by jury was waived.
The court below found that the evidence sustained the findings made by the referee, adopted them as its own, and rendered judgment for defendants on their counterclaim in the amount found to be due. A careful examination of the record fails to disclose error therein.
Affirmed.