#### STANDARD CROWN COMPANY, Inc., v. HARRY E. JONES, Trading as JONES BOTTLING WORKS.

(Filed 24 October, 1928.)

1. Appeal and Error — Review—Findings of Fact.

Findings of fact by a referee and approved by the trial judge, supported by any competent evidence, are not reviewable on appeal to tbe Supreme Court.

2. Evidence — Parol or Extrinsic Evidence Affecting Writings — Oral Agreement .of Contract.

Where a letter ordering goods specifies the number and kind or the articles, and is accepted by the seller’s letter, it may be shown by the purchaser in the seller’s action to recover the contract price, that the order was based upon a previous verbal contract that.the goods were to be paid for only as and when ordered, as an unwritten and uncontradietory part of the entire contract.

S. Customs and Usages — Evidence Thereof — Contracts.

An observed custom prevailing at the time of the sale and delivery of goods may be shown by parol as an unwritten part of a contract the law does not require to be in writing, when not contradictory of the written part.

Civil aotioN, before *Townsend, J.,*at Chambers, August Term, 1928, of Wake.

Plaintiff sued tbe defendant for tbe purchase price of certain crowns manufactured by tbe plaintiff and sold to him for use in bottling soft drinks. The defendant denied that there was an unconditional contract for tbe purchase of crowns and thereupon tbe cause was duly committed to a referee as provided by law. After bearing tbe evidence and argument of counsel tbe referee found certain facts and based thereon certain conclusions of law.

Tbe pertinent findings of fact were as follows: “(6) Early in January, 1920, an agreement was entered into by plaintiff, through said Edward T. Fleming as secretary-treasurer of said company, and tbe defendant, in Washington, D. C., whereby, for tbe convenience and benefit of tbe plaintiff, tbe defendant was to place with plaintiff an order for a number of *209gross of crowns to be made up specially with tbe understanding and stipulation that tbe defendant would not be required to accept or pay for same except as said' crowns might be ordered out by tbe defendant, and sucb crowns so accepted by tbe defendant were to be billed bim at market price wben shipped, and pursuant to and as a part, of said contract tbe defendant sent to said Fleming tbe following letter, to wit: Standard Crown Company, Philadelphia, Pa. Gentlemen: Make me up in stock for shipment wben ordered: 5,000 gross My-Coca Crowns. 5,000 gross Smile Crowns. 2,500 gross Eoot Beer Crowns. 2,500 gross Golden Eod Ginger Ale Crowns. We want these crowns made up Special with Jones Bot. Wks. on tbe top and Ealeigh, N. C., at tbe boftoin... Thanking you for your prompt attention. Yours very respectfully, Jones Bot. Wks.- Harry E. Jones. ..Enclosed find sample Golden Eod- Ginger Ale Crown. Leave off tbe litbia compound.”

¡The plaintiff, by letter written by said Fleming, replied as follows, to:wit: “26 Jan.-, 1920. Jones Bottling Works, Ealeigh, N. C. Gentlemen;: Your letter of tbe 12th inst. ordering 5,000 gross My-Coca crowns, 5,000 gross Smile crowns. 2,500 gross root beer crowns. 2,500 gross Golden Eod Ginger Ale crowns received and we note that you want all these made up-with Jones Bottling Works, Ealeigh, N. C.’ appearing on tbe crowns. We have already proceeded with this order and as soon as they are ready we will notify you in order that you may commence ordering out against this stock. .With tbe writer’s kind personal regards, and thanking yob for this business, we are, Yours very truly, Standard Crown Company, Inc. (signed) Sec. & Treas.”

The aforesaid letter and reply were part of tbe aforesaid parol contract and agreement between said parties.

“(9) There was, in January, 1920, and thereafter a well recognized custom and practice of tbe trade, known to tbe defendant at tbe time of tbe execution of bis contract with tbe plaintiff, that a customer would p'ay to tbe seller three cents per gross for obsolete crowns made up for such customer and not ordered out, and tbe plaintiff under bis interpretation of tbe letter (Exhibit B) was authorized to specially decorate 15,000 gross of crowns, and thereafter shipped tbe defendant a total of 7,150' gross, léaving 7,850 gross on band at 3 cents per gross, amounting to $235.00 in which said sum defendant is further indebted to tbe plaintiff.” - ••

Upon tbe foregoing findings of fact tbe referee found that tbe defendant was indebted to tbe plaintiff in the sum of $783.48 with interest from 3 October, 1927, on tbe principal sum of $647.00, and tbe costs of tbe action.

- - Both parties filed exceptions to tbe evidence, and tbe plaintiff filed exceptions to tbe findings of fact and conclusions of law made by tbe ' *210referee. Thereupon the question was submitted to the judge, who entered judgment approving and adopting the finding of fact and conclusions of law contained in the report of the referee.

From judgment in accordance with the report of the referee, the plaintiff appealed.

*Barwich & Leach for plaintiff.*

*Wm. B. Jones and J. 8. Griffin for defendant.*

BeogdeN, J.

“It is settled by all the decisions on the subject, with none to the contrary, 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.” *Kenney v. Hotel Co.,*194 N. C., 44, 138 S. E., 349.

The question, therefore, is whether or not there was evidence to support the findings. The plaintiff contends that the letter of 12 January, 1920, from the defendant to the plaintiff and the reply thereto dated 26 January, 1920, constituted a written contract between the parties. The defendant, upon the other hand, contended that the letters were written in conformity with a prior parol agreement. It is now settled beyond dispute that if the contract is not required by law to be put in writing and a part of said contract is oral, evidence of the oral portion is admissible 'if it does not contradict or vary the writing, for the purpose of establishing the contract in its entirety. *Palmer v. Lowder,*167 N. C., 331, 83 S. E., 464; *Henderson v. Forrest,*184 N. C., 234, 114 S. E., 391; *Miller v. Farmers Federation,*192 N. C., 144, 134 S. E., 407; *Hite v. Aydlett,*192 N. C., 166, 134 S. E., 419.

The defendant testified that he made a verbal agreement with an agent of plaintiff according to which the plaintiff would make up the crowns and keep them in stock for defendant, and ship them as needed, at the prevailing market price, and that thereupon the defendant agreed with the agent of plaintiff that upon his return to Baleigh he would make up an order in accordance with the conditions stipulated, and in pursuance of such agreement the letter of 12 January was forwarded to plaintiffs. It will be observed that the letter of 12 January stipulates no price for the crowns and specifies no time for shipment except “when ordered.” As we interpret the evidence of the alleged verbal contract in connection with the letters, it does not appear that the parol agreement alleged by the defendant is totally inconsistent with the subject-matter of the letters. Certainly it cannot be said that there was no evidence of the parol agreement, and under the authorities, the finding of fact by the referee, approved by the trial judge, is conclusive.

*211With respect to the ninth finding of fact, the plaintiff contends that there was no evidence to support such finding to the effect that there was a “well recognized custom and practice of the trade.”

With reference to the amount a customer should pay for “obsolete crowns made up for such customer and not ordered out,” a witness for defendant testified: “That it was a general custom and was accepted by all the manufacturers at the time this order was given in January, 1920.” While there was an apparent conflict, this testimony was some evidence of the custom relied upon. The rule is stated thus in *Penland v. Ingle,*138 N. C., 456, 50 S. E., 850: “The character and description of evidence admissible for establishing the custom is the fact of a general usage and practice prevailing in the particular trade or business, and not the opinions of witnesses as to the fairness or reasonableness of it.” The law of custom, as established in this jurisdiction, is discussed in the following cases: *Blalock v. Clark,*137 N. C., 140, 49 S. E., 88; *Penland v. Ingle,*138 N. C., 456, 50 S. E., 850; *Bank v. Floyd,*142 N. C., 187, 55 S. E., 95; *McDearman v. Morris,*183 N. C., 76, 110 S. E., 642.

As the record discloses that there was evidence to be'considered by the referee of a verbal agreement and of a general custom of the trade, his findings of fact, having been approved by the trial judge, determine the controversy.

Affirmed.