Lindsey v. Mitchell & McCauley

• Decision Date: 31 October 1917
• Docket Number: 331.
• Citation: 93 S.E. 955,174 N.C. 458
• Parties: LINDSEY v. MITCHELL & MCCAULEY ET AL.
• Court: North Carolina Supreme Court

93 S.E. 955

174 N.C. 458

LINDSEY v. MITCHELL & MCCAULEY ET AL.

No. 331.

Supreme Court of North Carolina

October 31, 1917

Appeal from Superior Court, Alamance County; Kerr, Judge.

Action by M. B. Lindsey against Mitchell & McCauley and the City of Burlington, with counterclaim by defendants. Verdict and judgment for plaintiff, and defendant Mitchell & McCauley appeal. Affirmed.

Where there is departure in reply, motion to strike out offending parts will not usually be considered after verdict.

W. H Carroll, of Burlington, and Parker & Long, of Graham, for appellant.

D. R Fonville, of Burlington, Long & Long, of Graham, and E. S.W Dameron, of Burlington, for appellee.

HOKE J.

Plaintiff alleged in his complaint, and on the trial offered evidence tending to show that, defendant Mitchell & McCauley were contractors who had constructed a public graded school building for the city of Burlington. That plaintiff had supplied building material which had been used in said building, an itemized statement of the amount being filed and exhibited, and there was a balance due plaintiff thereon of $1,211.88; that, on notice duly filed, the city of Burlington had retained from sum due contractors an amount sufficient to pay plaintiff's claim, and same was ready and available for the purpose. Defendants answered, admitting that plaintiff had supplied material which had been used in the building and the amount alleged was still unpaid, but averred that plaintiff had supplied the lumber pursuant to a contract defendants had made with one Sprott, and had, in effect taken over their contract with Sprott; that the lumber so supplied was in breach of the contract made with Sprott, both as to the time of delivery and quality of some of the material, whereby the defendants were forced to go into the market and buy certain material at an advanced price, to defendants' damage. Plaintiff, replying to counterclaim, denied that he was in any way acting for Sprott or under Sprott's contract, but alleged that, on certain shipments of lumber by Sprott, plaintiff, at defendants' request and for their accommodation, had paid drafts for lumber shipped with bill of lading attached; that this lumber so supplied by plaintiff had been used in the building and was part of the account contained in the itemized bill on which there was the balance due, as stated. Defendants filed a rejoinder, in which they denied making any request to plaintiff to take up the drafts and pay for the lumber, and again averred that plaintiff had supplied the lumber under their contract with Sprott, and thereby became responsible on the counterclaim set up in their answer. On issues submitted, the jury rendered the following verdict:

"First. Are the defendants indebted to the plaintiff for material furnished; if so in what amount? Answer: $1,211.88. Interest from August 28, 1916.

Second. Did the plaintiff take over and assume the contract made between one Sprott and the defendants concerning the...