Queen v. DeHart

• Decision Date: 26 February 1936
• Docket Number: 26.
• Citation: 184 S.E. 7,209 N.C. 414
• Parties: QUEEN v. DE HART et al.
• Court: North Carolina Supreme Court

184 S.E. 7

209 N.C. 414

QUEEN v. DE HART et al.

No. 26.

Supreme Court of North Carolina

February 26, 1936

Appeal from Superior Court, Swain County; Alley, Judge.

Action by J. C. Queen against W. M. DeHart and others. Judgment for plaintiff, and defendants appeal.

No error.

Objection that certain questions related to unaccepted offer of compromise held waived, where one objecting also testified as to making such offer.

This is an action brought by plaintiff against defendants to recover $3,975.80, including interest, due upon the following contract:

"North Carolina, Swain County.

Jan. 2 1931.

This is to certify that J. C. Queen is turning over to W. M. DeHart T. C. Queen and T. J. Ferguson my certificate

November 13-29 $900.00

June 5-30 2255.00

Check 746.10 Amounting to $3,901.10 of Citizens Bank of Bryson City, N. C., with the understanding that if accepted by the State Corporation Commission on the amount demanded for the reopening of the said Bank then the said W. M. DeHart, T. C. Queen & T. J. Ferguson is to give his note due December 20, 1932, with interest if certificate of deposit up to November 21, 1930, at 4%. If not accepted by Corporation Commission then the above is to be returned.

Witness:

R. G. Coffey [Signed] W. M. DeHart

R. G. Coffey T. C. Queen

R. G. Coffey T. J. Ferguson."

The plaintiff alleges that he complied with the above contract and the bank reopened. The note in controversy which was given, is as follows:

"$3,975.80

Bryson City, N. C., April 3, 1931.

On December 20, 1932, for value received, we promise to pay to J. C. Queen $3,975.80. Negotiable and payable at Citizens Bank, Bryson City, N. C., The drawers and endorsers of this note severally waive presentment and notice of protest and guarantee its payment any time after maturity without interest.

[Signed] W. M. DeHart

T. C. Queen."

The plaintiff indorsed and transferred the note to one Ed. Floyd, who in turn transferred same to one R. E. Andrews, who brought suit on the note. On the trial of the action DeHart denied liability on the grounds that his execution of the note was conditional upon the signing of the same by defendant T. J. Ferguson.

Plaintiff alleged that "upon a verdict of the jury, sustaining the contentions as to said DeHart, the action was dismissed as against him and judgment rendered against this plaintiff and Ed Floyd (no service of process having been had on said T. C. Queen), for the amount of said note, and that this plaintiff has been required under said judgment, to pay same. That the said defendants, by reason of their failure and refusal to execute the note to plaintiff, as provided for in their said agreement, and their failure and refusal to pay to said plaintiff on or before the 20th day of December, 1932, the amount provided to be paid under said agreement, breached said contract, to plaintiff's great damage, in the sum of $3,975.80, with interest thereon from the 20th day of December, 1932. That the plaintiff is advised and believes and now avers that the defendants and each of them, by reason of the breach of said contract and their failure and refusal to comply with same, became and are indebted to this plaintiff in the full sum of $3,975.80, together with interest thereon from the 20th day of December, 1932; and this plaintiff further avers that he had made demand for payment of said amount upon the defendants, and each of them, and payment has been refused."

The defendant W. M. DeHart denied the material allegations of the complaint and alleged as a further defense that "it was further agreed that before said agreement should become effective and binding upon any of these defendants, that plaintiff would obtain the signatures or execution of a note in said sum signed or executed by all of the defendants; and that should the plaintiff fail to obtain the signatures and execution of said note by any one or more of said defendants, said contract and agreement so entered into should not be valid and binding upon any of the parties to same; that the defendant, T. J. Ferguson, refused to sign and execute said note or the plaintiff, at least, failed to obtain the signature and execution of said note by the defendant, T. J. Ferguson, which plaintiff alleges was a breach of the agreement herein set out, and of the conditions upon which said contract was executed." He further plead estoppel-res judicata the judgment in the Andrews action. The judgment in that case says: "It is therefore considered, ordered and adjudged and decreed that the plaintiff R. E. Andrews have and recover nothing against the defendant W. M. DeHart in this cause."

The defendant DeHart also alleged as a further defense: "That if said contract and note had been completed and executed as agreed and made valid, then and in that event this defendant would be and would have been liable to the plaintiff for only one-third of the amount claimed for the reason that as part of said agreement it was agreed by and between the plaintiff and the defendants, who signed said paperwriting set out in the pleadings, that each party signing said contract was to be liable to the plaintiff for only one-third of the amount named in said contract and no more, and this defendant says and alleges, as heretofore set out, that he is not liable to the plaintiff in any sum and does not owe plaintiff anything, but in the event that it should be found that this defendant is indebted to the plaintiff in any sum, defendant is only indebted to plaintiff in the sum of one-third of the amount mentioned and set out in said paperwriting, copied and described in the pleadings."

The defendant T. J. Ferguson answered denying the material allegations of the complaint, and as a further defense alleged that he turned over to plaintiff, with the consent of defendants T. C. Queen and W. M. DeHart, five shares of stock in the Citizens Bank of Bryson City, N. C., and plaintiff released him from any liability on the contract.

The issues submitted to the jury and their answers thereto succinctly show the controversy, which are as follows:

"1. Did the defendants execute the contract in writing dated the 2nd day of January, 1931, as alleged in the complaint? Ans: Yes.

2. Did the plaintiff and the defendants, at the time of the execution of said contract in writing enter into a supplementary oral contract under the terms of which it was agreed that the said written contract should not be binding and effectual, unless and until all the defendants executed and delivered to the plaintiff their note for the amount called for by said written contract, as alleged by the defendants? Ans: No.

3. Did the plaintiff and the defendants, at the time of the execution of said written contract, enter into a supplementary oral contract under the terms of which it was agreed that the liability of each of the defendants should be limited to one-third of the amount called for by said written contract, as alleged by the defendants, W. M. DeHart and T. J. Ferguson? Ans: Yes.

4. Did the plaintiff and the defendant, T. J. Ferguson, enter into an oral contract under the terms of which it was agreed that the said Ferguson should be released from his obligation under said contract upon the delivery to the plaintiff of five shares of stock in the Citizens Bank and borrowing of $500.00 to be used by J. R. Jenkins in the opening of said bank, as alleged by the defendant T. J. Ferguson? Ans: No.

5. Did the defendant W. M. DeHart commit a breach of said contract, as alleged in the complaint? Ans: Yes.

6. What amount, if anything, is the plaintiff entitled to recover of the defendant, W. M. DeHart? Ans: $1,325.27, with interest.

7. Did the defendant T. J. Ferguson commit a breach of said contract, as alleged in the complaint? Ans: Yes.

8. What amount, if anything, is the plaintiff entitled to recover of the defendant, T. J. Ferguson? Ans: $1,325.27, with interest."

Judgment was rendered in the court below on the verdict. The defendants 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.

Edwards & Leatherwood, of Bryson City, for appellant W. M. DeHart.

B. C. Jones, of Bryson City, for appellant T. J. Ferguson.

I. C. Crawford and Black & Whitaker, both of Bryson City, for appellee.

CLARKSON Justice.

At the close of plaintiff's evidence and at the close of all the evidence, the defendants W. M. DeHart and T. J. Ferguson in the court below made motions for judgment as in case of nonsuit. C.S. § 567. The court below overruled these motions and in this we can see no error.

The defendants saw fit to try the case on the issues appearing in the record. In fact, the defendant DeHart agreed to the issues and prayed for an additional one: "In apt time the defendant W. M. DeHart tendered the following issue which he requested the Court to submit to the jury, as follows: 'That the defendant W. M. DeHart hereby tenders the issues prepared and submitted to the Court, and in addition thereto the following issue:-Q. Is the plaintiff, J. C. Queen, entitled to bring, prosecute and recover in this action as against the defendant W. M. DeHart?"'

First. We consider the exceptions and assignments of error of W. M. DeHart. It is well settled in this jurisdiction that a case will be reviewed on the same theory on which it was tried in the court below, and appellants may not have a case heard on a different theory from that on which it was tried. We see no error in refusing the issue tendered by W. M. DeHart on the facts of this case. We think there was sufficient competent evidence on the part of plaintiff to sustain the issues.

We do not think that the defendants' plea of...