majority"> Stacy, C.. J.,

after stating the case: We think it was error for the trial court to confirm the report of the referee at the August Term, without first submitting an appropriate issue to the jury, as the defendant bad duly preserved her right to have the controverted matter determined in this way. Tbe appealing defendant objected and excepted to the order of reference at the time it was made, and, on the coming in of the report, she filed exceptions thereto in apt time, properly tendered an appropriate issue and demanded a jury trial on the issue tendered and raised by the pleadings. This preserved her right to have the matter submitted to a jury. Jenkins v. Parker, 192 N. C., 188, 134 S. E., 419; Baker v. Edwards, 176 N. C., 229, 97 S. E., 16; Driller Co. v. Worth, 117 N. C., 515, 23 S. E., 427.

*740 We are also of opinion that error was committed on tbe trial at tbe April Term. The third and fourth issues, above set out, refer to the same contract — the building contract between the owner and the contractor. The burden of proof with respect to the third issue was placed upon the defendant, Mrs. Broadhurst, while the plaintiff was given the laboring oar on the fourth issue. Thus, it would seem that the burden of proof, with respect to the alleged breach of the building contract, was put upon both parties at the same time. This was error. Power Co. v. Taylor, 194 N. C., 231, 139 S. E., 381; Speas v. Bank, 188 N. C., 524, 125 S. E., 398.

Furthermore, it may be doubted as to whether the record contains evidence sufficient to support a finding that the contract was breached by Mrs. Broadhurst. True, she stopped the laborers and declined to pay a hill of $98 on the morning of 11 February, 1928, but this was adjusted later in the day through the efforts of the bondsman, with the understanding that the work would continue, and on the following Monday a check for $220 was given to the contractor to cover a draft for materials. As to whether this amounted to a waiver of any prior deviation from the contract, does not seem to have been submitted to the jury, and we are content to place our present decision on the error in the charge relative to the burden of proof.

New trial.

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