Davis v. Warren, 314.
| Decision Date | 10 April 1935 |
| Docket Number | No. 314.,314. |
| Citation | 179 S.E. 329,208 N.C. 174 |
| Court | North Carolina Supreme Court |
| Parties | DAVIS et al. v. WARREN. |
Appeal from Superior Court, Watauga County; Sinclair, Judge.
Action by W. C. Davis and another against D. F. Warren. From a judgment in favor of plaintiffs, defendant appeals.
No error.
The plaintiffs bring an action on the following contract:
The plaintiffs allege that the land contains only thirty acres, and prays judgment for $750. The defendant denies that there was such a contract and that the same is a forgery, and pleads the 10-year statute of limitations.
The issues submitted to the jury and their answers thereto, were as follows:
The defendant made numerous exceptions and assignments of error, and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.
W. R. Lovill and T. E. Bingham, both of Boone, for appellant.
Wiley H. Swift and C. David Swift, both of Newland, for appellees.
The questions involved on this appeal, as set forth by defendant, we will consider seriatim, as follows: First, "Did the Court err in permitting the surveyor to testify as to the acreage in a tract of land surveyed by him in an ex parte survey without notice to the defendant?" We think not, under the facts and circumstances of this case. The defendant denied the execution of the contract.
The jury, in its answer to the first issue, found that the defendant executed the con-tract as alleged in the complaint. The contract which we must construe, contained the fallowing: "This land not being surveyed at the time of the sale, but i, the said D. F. Warren do hereby bind myself to a survey of said land before the final settlement is made so as to know the correct number of acres to settle on with said purchasers." etc.
Who should make the survey was not mentioned in the contract. Either party, under the contract, could have made a survey. Although defendant denied that there was such a contract, yet the disputed acreage was in evidence on the part of both plaintiffs and defendant. The county surveyor, a witness for plaintiffs, made a survey and testified that there was 34 acres in the tract. A surveyor, a witness for defendant, made a survey, and testified that there were 38 acres in the tract, and this survey was made at the request of plaintiffs. This matter was submitted to the jury under the second issue and the amount of shortage found to be 6 acres.
Second. "Did the Court err in refusing to direct a verdict in favor of the defendant on the ground that the action was barred by the statute of limitations?" We think not.
The contract says "a survey of said land before the final settlement is made so as to know the correct number of acres to settle on with said purchasers." etc.
The plaintiff, T. S. Davis, testified, in part: ...
To continue reading
Request your trial
- Hampton v. North Carolina Pulp Co, 92.
-
Hawkins v. M & J Finance Corp.
...the question of estoppel is one of law for the court to determine. 19 Am. Jur., Estoppel, Sections 200 and 201. See also Davis v. Warren, 208 N.C. 174, 179 S.E. 329; Proffitt Mercantile Co. v. State Mut. Fire Ins. Co., 176 N.C. 545, 97 S.E. No error. BARNHILL,J., dissents. ...
-
Hampton v. North Carolina Pulp Co.
... ... Gibson v ... Gordon, 213 N.C. 666, 197 S.E. 135; Davis v ... Warren, 208 N.C. 174, 179 S.E. 329; Thorpe v ... Parker, 199 N.C. 451, 154 S.E. 674; ... ...
-
Rhodes v. Raxter
...Mercantile Co. v. State Mut. Fire Ins. Co., 176 N.C. 545, 97 S.E. 476; Holt v. Maddox, 207 N.C. 147, 176 S.E. 261; Davis v. Warren, 208 N.C. 174, 179 S.E. 329. The instruction to which Exception No. 71 relates is as follows: '* * * if you believe the facts to be as testified to by the witne......