Currie v. Malloy

• Decision Date: 28 March 1923
• Docket Number: 285.
• Parties: CURRIE ET UX. v. MALLOY ET UX.
• Court: North Carolina Supreme Court

116 S.E. 564

185 N.C. 206

CURRIE ET UX. v. MALLOY ET UX.

No. 285.

Supreme Court of North Carolina

March 28, 1923

Appeal from Superior Court, Cumberland County; Bond, Judge.

Action by F. Wade Currie and wife against Wiley B. Malloy and wife for breach of covenants of warranty and fraud. Judgment for plaintiffs, and defendants appeal. No error.

A general instruction as to damages is sufficient in the absence of a specific prayer for a better or fuller statement of the law.

The exceptions of appellants were as follows:

Exception No. 1. That the court erred in allowing the plaintiffs to file, rely upon, and read in the trial of this cause a reply which they had filed long after the time for so doing had expired, and without any extension of time so to do, and without any order of court providing therefor.

Exception No. 1 1/2. That the court erred in permitting the defendants to amend the complaint in such a way as to change the entire cause of action, and to state a cause of action inconsistent with and repugnant to that stated in the original complaint.

Exception No. 2. That the court erred in signing an order on the 25th day of September, 1922, allowing the plaintiffs to amend the complaint as above set forth, and allowing the defendants time to answer, and at the same time peremptorily setting the case for trial and trying the same within 30 days thereafter, and within less than 30 days after issue had been joined upon the new cause of action which the court had permitted the plaintiffs to allege, and upon which the case was made to turn in the trial thereof.

Exceptions Nos. 3 and 4. That the court erred in allowing the witness Sudie Bell Grantham, a minor, to testify what she intended to do as to repudiating her deed when she should arrive at her majority.

Exception No. 5. That the court erred in not allowing defendants' motion for judgment as of nonsuit at the close of the plaintiffs' evidence.

Exception No. 6. That the court erred in not allowing defendants' motion for judgment as of nonsuit at the close of all the evidence.

Exception No. 7. That the court erred in refusing to submit the issues tendered by the defendants and in submitting the issues as set out in the record.

Exception No. 8. That the court erred in charging the jury as follows "If you believe the evidence and find the facts to be as the evidence tends to prove, you will answer the first issue 'Yes.' " And again: "That does not weaken what is set in the pleadings, and if you find the facts to be as sworn to in the answer, you will answer the first issue 'Yes.' " And again: "If you believe this evidence, and find the facts to be as it tends to prove, you will answer the second issue 'Yes.' " And again "On the sixth issue, I charge you that the measure of damages is that, if I get money from you, making you a deed in which I covenant that I have got a good title when I have not, you get your money back, less rent. You have got to give the man his money back, only deducting the rental value of the land."

Exception No. 9. That the court erred in refusing to give the defendants' prayer for instructions as follows: "If you find that the plaintiffs were never disturbed in the possession of the land described in the complaint, or ejected therefrom under superior title, but left said land voluntarily and never suffered any actual loss or damage on account of the alleged failure of title, and never had to pay out any money on account thereof, then I charge you that the damages recoverable in this case could in no event be more than nominal damages."

Exception No. 10. That the court erred in not explaining to the jury in a plain and concise manner the law applicable to this case and especially in failing to give to the jury any definition of what constitutes fraud, or what it would be necessary for them to find in this case before answering the issues of fraud in the affirmative.

Exception No. 11. That the court erred in refusing to set aside the verdict of the jury, and in signing the judgment as set out in the record.

This civil action was tried before Judge Bond and a jury, in superior court of Cumberland county.

Plaintiffs purchased land described in the complaint from the defendants for $1,000 by deed with usual covenants of seizin, incumbrances, and warranty, and this was admitted by the answer and in the case.

At the time of and before the defendants purchased the land, and at the time they sold to plaintiffs, an action entitled "Edge v. Edwards" was pending in the superior court of Cumberland county, the place of residence of all parties, wherein defendants' grantors alleged they were the owners of the land by reason of a tax title, and wherein certain minor heirs alleged that they were the owners of said land. Before trial of the present action, defendants made themselves parties to the action of Edge v. Edwards, and there was a final judgment that defendants had a good title to only one-fourth interest in said land, and title to another one-fourth interest subject to disaffirmance by one of said minor heirs, and that defendants had no interest in the other two-fourths interest, which was the property of two other minor heirs. The defendant Malloy admitted on his direct examination that defendants' immediate grantor had told him at the time of the purchase that he, the grantor, had only a tax deed against minor heirs for a portion of the land, and that one of the minor heirs was in an institution for the feeble-minded.

At the time of and before plaintiffs purchased defendants represented to plaintiffs that they had a perfect title to the lands. And defendant Malloy admitted upon the trial that, "before the trade was completed, they [[plaintiffs] came and asked me about the title, and I told them that the title was all right."

The jury returned the following verdict in response to the issues submitted to them:

"(1) Did the defendant sell the lands described in the complaint to the plaintiffs for $1,000? Answer: Yes.

(2) Did the deed of the defendant, referred to in the complaint, fail to convey a good and indefeasible fee-simple title to said land? Answer: Yes.

(3) Was there a compromise of matters in difference between the plaintiffs and defendants, as alleged? Answer: No.

(4) If so, was the alleged compromise obtained by the defendants induced by false and fraudulent statements made to the plaintiffs by the defendants, or either of them, as alleged in the complaint? Answer: ______.

(5) Was the payment of the said $1,000 to the defendants induced by false and fraudulent statements made to the plaintiffs by the defendants, or either of them, as alleged in the complaint? Answer: Yes.

(6) What damages, if any, are the plaintiffs entitled to recover of the defendants? Answer: $1,000."

Judgment was entered on the verdict, and defendants appealed.

Dye & Clark, of Fayetteville, for appellants.

Bullard & Stringfield, W. C. Downing, and Henry E. Williams, all of Fayetteville, for appellees.

WALKER, J. (after stating the facts as above).

We will now consider the exceptions in some detail, so as to be sure that we cover fully the grounds of contention as taken by the respective parties.

Exception 1 is abandoned.

Exceptions 1 1/2, 2, and 7: It appears by the record that defendants excepted to the order allowing amendment and peremptorily setting case for trial only "in so far as the same permits the amendment"; therefore the defendants did not at the time except to the setting of the case for trial at the next term, but, in effect, if not in form, only excepted to the amendment of the complaint. Had they excepted to the setting of the case for trial at the next term, the judge would have had an opportunity to pass upon the exception, and would have, if he found proper, set the case at a subsequent term, but by his failure to except at the proper time there is nothing for review under this exception.

The assignment of error in the case on appeal cannot cure the failure to except at the time, because assignments of error must be founded upon exceptions properly and duly taken. Borden v. Power Co., 174 N.C. 73, 93 S.E. 442; Harrison v. Dill, 169 N.C. 544, 86 S.E. 518; State v. Tyson, 133 N.C. 699, 45 S.E. 838; State v. Davenport, 156 N.C. 611, 72 S.E. 7.

Exception 2: This exception is also untenable. It is said, speaking to the exact point, in Dockery v. Fairbanks, 172 N.C. 529, 90 S.E. 501:

"The only question presented is as to the authority of the trial judge to permit an amendment alleging fraud in an action for damages for false representations and breach of warranties in the original sale. The defendant was in court, and the amendment alleging the fraud was germane to the original complaint, and it was in the discretion of the trial judge to permit the amended complaint to be filed. If this had been done during the trial, and the nature of the amendment was such that the defendant would have been taken by surprise, not being prepared to meet the charge of fraud, then it would have been error not to withdraw a juror and grant the defendant a continuance; but this was done. * * * The Code favors a liberal allowance of amendments in order that cases may be tried on their merits. There could have been no advantage in dismissing the plaintiff's action and requiring him to bring a new action setting up what is now alleged in the amended complaint."

That would have been violating, at least, the spirit of the Code and our procedure. The court, in its sound discretion, could allow the amendment, which was simply an additional ground to that alleged in the original complaint, or rather an enlargement or amplification of the cause of action already stated, and not the setting up of a new cause of action. Joyner v....