Kannan v. Assad

• Decision Date: 28 September 1921
• Docket Number: 64.
• Citation: 108 S.E. 383,182 N.C. 77
• Parties: KANNAN ET AL. v. ASSAD.
• Court: North Carolina Supreme Court

108 S.E. 383

182 N.C. 77

KANNAN ET AL. v. ASSAD.

No. 64.

Supreme Court of North Carolina

September 28, 1921

Appeal from Superior Court, Wilson County; Calvert, Judge.

Action by Charles Kannan and others against H. Assad. From judgment for plaintiffs, and from refusal to enter contrary judgment on the verdict, defendant appeals. No error.

The verdict of a jury may be given significance and correctly interpreted by reference to the pleadings, evidence admissions of the parties, and the charge of the court.

Summary proceedings in ejectment tried originally before a justice of the peace, and then de novo upon appeal in the superior court, where the following verdict was rendered by the jury:

"(1) Did plaintiff and defendant enter into a contract for the rental of the property in question for a term of three years beginning February 25, 1921? A. Yes.

(2) Did defendant, Assad, fail to perform on his part the terms of said contract? A. Yes.

(3) What is the reasonable rental value per month of the property? A. $20."

As bearing upon the meaning and sufficiency of the issues, the following appears in the record:

"At the close of the testimony, attorneys for both plaintiffs and defendant and the court indulged in some discussion as to the proper issues to be submitted. During the course of the discussion it was conceded by attorneys for both plaintiffs and defendant that, if the jury should find that the plaintiffs and defendant did enter into a contract for the rental of the property for a period of three years beginning February 25, 1921, and should further find that the defendant had failed on his part to do and perform the things that he had agreed to do as to the making of the repairs, such breach on the part of the defendant, Assad would constitute a forfeiture of the rental contract. The whole case was tried upon the theory that, if the jury should find that the contract was entered into, as they did find, and should further find that the defendant had failed to perform on his part, as the jury did find, then such failure would constitute a breach of contract. Counsel for both plaintiffs and defendant conceded this position before the court, and in the argument of the case before the jury. It was only after the jury had returned the verdict that any point was made by the defendant that he was entitled to judgment upon the verdict."

From a judgment declaring the lease forfeited, and that the plaintiffs are entitled to the immediate possession of the premises, and from his honor's refusal to enter a contrary judgment on the verdict, the defendant appealed.

O. P. Dickinson, of Wilson, for appellant.

W. A. Finch, of Wilson, and Connor & Hill, of Wilson, for appellees.

STACY J.

We do not think the defendant is entitled to a judgment on the verdict in view of the admissions and concessions made in open court, and before the rendition of the verdict. The case was tried on a different theory, with a different understanding, and it would seem that the defendant ought to be content with the result.

It is well understood that, except in proper instances, a...