Walker v. Burt

Decision Date02 November 1921
Docket Number257.
Citation109 S.E. 43,182 N.C. 325
PartiesWALKER v. BURT.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Wake County; Connoe, Judge.

Action by Willie Walker against J. J. Burt. From judgment for defendant, plaintiff appeals. No error.

If issues are directed to material facts under the pleadings and afforded an opportunity to present the various phases of the controversy, their number is a matter within the discretion of the trial court.

The plaintiff alleged that in December, 1918, he rented a farm from the defendant for the cultivation of certain crops during the year 1919; that he agreed to plant 10 acres in tobacco, 10 in cotton, 10 in corn, and 10 in wheat on certain conditions or agreements which are fully stated in the complaint. He alleged that the defendant in several respects had failed to comply with his contract; that he had sold a part of the plaintiff's crop of tobacco and had refused to account for all the proceeds; that the defendant had declined to permit the plaintiff to cultivate in cotton the land agreed on, but had required the plaintiff to cultivate another tract about a mile distant; that the defendant had sold the plaintiff's cotton and failed to account for it that the defendant had retained more rent corn than he was entitled to, and had wrongfully detained certain of the plaintiff's wheat. The plaintiff alleged further that sundry other dealings had taken place between him and the defendant, which need not be recited here, and that the defendant was indebted to him in the sum of $2,769.86, with interest from January 1, 1920.

The defendant denied the material allegations in the complaint setting out particularly his contentions as to the several matters relied on by the plaintiff, and alleged that the plaintiff had failed to cultivate the land according to the agreement, and in other particulars had failed to comply with the contract. The defendant by way of amendment incorporated the following allegation in his answer:

"That on or about the 22d day of November, 1919, the plaintiff and the defendant had a full accounting and settlement between them of all their claims, accounts, and demands except small remnants of ungathered crops, and that at said time and in connection with said settlement it was ascertained, determined, and agreed between them that the total indebtedness of the defendant to the plaintiff was $872.65, and that accordingly at said time the defendant paid to the plaintiff the said sum of $872.65, which said sum the plaintiff received and accepted from the defendant in full settlement of all matters, except the said remnants of ungathered crops, and that thereafter, to wit, on or about the 14th day of January, 1920, the plaintiff and the defendant had a full accounting and settlement of said remnants of ungathered crops not included in the said former settlement, and that thereupon upon a full accounting between them it was ascertained and determined that the full and final balance owing by the defendant to the plaintiff in adjustment, payment, and settlement of all accounts, claims, and demands existing between them was the sum of $14.45, and that thereupon the defendant paid to the plaintiff the said sum of $14.45 in full settlement as aforesaid, and the plaintiff received and accepted from the defendant the payment of the said sum of $14.45 in full, complete, and final settlement of all claims, accounts, or demands whatsoever of the plaintiff against the defendant, and that the plaintiff is by said settlement barred and estopped to set up the claims and demands set forth in his complaint, and is barred to maintain his said action."

The plaintiff tendered the following issues:

(1) Was the check dated November 22, 1919, for $872.65, given and received with intent on the part of both parties thereto that said check should be and was in full settlement of a disputed account and demand existing between the plaintiff and defendant on said date, except small remnants of ungathered crops?

(2) Was any check given by the defendant and received by the plaintiff on January 14, 1920, in the sum of $14.25?

(3) If so, was said check given and received with intent on the part of both plaintiff and defendant that said check should be, and was, in full settlement of disputed balance due from defendant to the plaintiff as of January 14, 1920, as alleged in defendant's supplemental answer?

His honor submitted only one issue to the jury, which, with the answer, is as follows:

"Has there been a full and final accounting and settlement between the plaintiff and the defendant of the matters in controversy referred to in the pleadings as alleged in the answer? A. Yes."

Thereupon judgment was rendered, adjudging that there had been a full and final accounting and settlement of all matters referred to in the pleadings.

All the exceptions in the original brief of the appellant's counsel, not including the last three, which are purely formal, relate either to the issue submitted and the court's refusal to submit the issues tendered by the plaintiff, or to the admission and rejection of evidence, or to declining or giving instructions to the jury. At the trial defendant testified that on November 22, 1919, he and the plaintiff had a settlement to date of all matters in dispute between them, and that he gave the plaintiff a check for $872.65, on which were written the words, "In full settlement to date," that the plaintiff thereupon delivered to the defendant a receipt "in full settlement of all accounts and for all crops sold up to date," and that on January 4, 1920, there was a complete settlement, and that the defendant paid the plaintiff $14.45 by a check marked "in full settlement." There was evidence for the defendant tending to show that the alleged settlements included all matters in controversy.

The plaintiff contended that the defendant was due him more than $872; that he did not understand the transactions as purporting to be in settlement of all matters in dispute that the defendant admitted owing the plaintiff about $1,500; and that defendant in...

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  • Switzerland Co. v. North Carolina State Highway & Public Works Commission
    • United States
    • North Carolina Supreme Court
    • November 8, 1939
    ... ... called to the attention of the Court at the time in order to ... afford an opportunity to correct them if in error. Walker ... v. Burt, 182 N.C. 325, 109 S.E. 43; State v ... Johnson, 193 N.C. 701, 138 S.E. 19; State v ... Herndon, 211 N.C. 123, 189 S.E. 173 ... ...
  • Pue v. Hood
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    ...S.E.2d 644; Potts v. Life Ins. Co., 206 N.C. 257, 174 S.E. 123; Gorham v. Pacific M. L. Ins. Co., 214 N.C. 526, 200 S.E. 5; Walker v. Burt, 182 N.C. 325, 109 S.E. 43; Lipsitz v. Smith, 178 N.C. 98, 100 S.E. Shipp v. Stage Lines, 192 N.C. 475, 135 S.E. 339; Warren v. Susman, 168 N.C. 457, 84......
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    ...211, 173 S.E. 310; Rand v. Gillette, 199 N.C. 462, 154 S.E. 746; Shipp v. United Stage Lines, 192 N.C. 475, 135 S.E. 339; Walker v. Burt, 182 N.C. 325, 109 S.E. 43, and there cited. It will be observed that in the interpretation of the record, the Court was a unit, there being no disagreeme......
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    ... ... the authorities require that he be given an opportunity to ... make the correction during the trial. Walker v ... Burt, 182 N.C. 325, 109 S.E. 43; Jordan v. Motor ... Lines, 182 N.C. 559, 109 S.E. 566; State v ... Reagan, 185 N.C. 710, 117 S.E. 1; ... ...
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