ATLANTIC COAST LINE RAILROAD COMPANY and ATLANTIC & EAST CAROLINA RAILWAY COMPANY v. WEYERHAEUSER COMPANY, 262 N.C. 730

PeR Cueiam. There is ample evidence in the record to establish the fact that the consignor requested cars with the capacity of 6,800 cubic feet in which to ship the wood chips involved. There is no evidence tending to show that the A&EC Railway did not have such cars available. Its only explanation for not furnishing the requested cars was that the consignor could not load cars of the requested size; that such cars were too high for the consignor's loading facilities.

The consignor introduced evidence to the effect that its loading spout could have been extended or adjusted in a matter of thirty or forty minutes so that it could have loaded the larger cars. The consignee likewise offered evidence to the effect that it could unload the larger cars. However, the court below made no finding of fact with respect to whether or not there was any justification for the failure of the A&EC Railway to furnish the cars requested. Garrison v. R. R., 150 N.C. 575, 64 S.E. 578; G.S. 60-111, which was repealed by

Chapter 1165 of the Session Laws of North Carolina, 1963, but at the time this controversy arose it was in effect. See also 13 C.J.S., Carriers, sections 35 and 36, page 69, et seq., and 13 Am. Jur. 2d, Carriers,

section 120, page 659. Even so, we must decide this appeal on the record as submitted, based on the defendant’s exceptions and assignments of error. The defendant did not except to the failure of the court below to find whether or not the A&EC Railway was justified in failing to furnish the cars requested, nor did the defendant except to finding of fact No. 2, which is to the effect that the freight rate applicable to the shipments involved is $1.69 per unit and not $1.40 per unit as contended by the defendant.

We have repeatedly held that where a finding of fact is not excepted to and assigned as error it is presumed to be supported by competent evidence and is binding on appeal. Goldsboro v. R. R., 246 N.C. 101, 97 S.E. 2d 486, and cited cases. In our opinion, the appellant’s assignments of error fail to disclose any error of sufficient prejudicial effect to warrant a new trial. Hence, the judgment entered below is Affirmed.